Onotevu (Migration) - [2019] AATA 3589

Onotevu (Migration) [2019] AATA 3589 (14 July 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Oghenevwede Patrick Onotevu
CASE NUMBER:  1725273
HOME AFFAIRS REFERENCE(S):           BCC2017/2969013
MEMBER:K. Chapman
DATE:14 July 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 14 July 2019 at 9:24pm
CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – fraudulent conduct – corrupt conduct by a Departmental officer – valid s 376 certificates – never completed a course of study in Australia – not a genuine student – lacks credibility as a witness – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 116, 359A, 362A, 375A, 376
Migration Regulations 1994, r 2.43
CASES
Botha v Minister for Immigration and Border Protection [2017] FCA 362
Guo v Commonwealth of Australia [2017] FCA 1355
Patel v Minister for Immigration and Border Protection [2016] FCA 165
Rani v Minister for Immigration and Border Protection [2015] FCCA 445
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 11 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the applicant’s Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (‘the Act’). The applicant, Mr Oghenevwede Patrick Onotevu, is a Nigerian national.
The visa was cancelled under s.116(1)(g) of the Act on the basis that the delegate reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person pursuant to the prescribed ground in r.2.43(1)(o) of the Migration Regulations 1994 (‘the Regulations’). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The visa cancellation decision record of 11 October 2017, a copy of which was provided to the Tribunal by the applicant, reveals the following particulars:
a.on 8 March 2017, the applicant made an electronic application for a Subclass 500 Student visa;
b.on 14 March 2017, the applicant was granted a Subclass 500 Student visa by a locally engaged Departmental employee in Pretoria, South Africa;
c.on 25 March 2017, the applicant arrived in Australia;
d.an investigation indicates that a locally engaged Departmental employee acted improperly by way of fraudulent conduct to grant the applicant’s visa;
e.on 29 August 2017, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa;
f.on 8 September 2017, the applicant responded in writing to the NOICC denying he was involved in any wrongdoing and submitting material in support of his contention that he satisfies the criteria for the Student visa (the Tribunal has duly considered the aforementioned material); and
g.on 11 October 2017, the delegate cancelled the applicant’s Subclass 500 Student visa.
On 17 October 2017, the applicant applied to the Tribunal for review of the visa cancellation…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] AATA 3589
Decision Date: 14 July 2019

CaseChat Overview and Summary

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 500 (Student) visa. The dispute arose from the Department's suspicion that the visa had been obtained as a result of fraudulent conduct, potentially involving a Departmental officer. The applicant contended that he was unaware of any wrongdoing, met the visa criteria independently, and would suffer significant hardship if the visa were cancelled due to circumstances beyond his control.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the Migration Act 1958 (Cth) and regulation 2.43(1)(o) of the Migration Regulations 1994 (Cth) was established. If so, the Tribunal then had to consider whether, in the exercise of its discretion, the applicant's visa should be cancelled, having regard to all relevant circumstances, including the applicant's submissions and evidence.

The Tribunal reasoned that the delegate had reasonably suspected fraudulent conduct in the visa's procurement, thereby establishing the ground for cancellation. While acknowledging the applicant's submissions and supporting documents, the Tribunal found that the applicant had not completed any course of study since arriving in Australia and had not made a serious attempt to resume studies in the significant period that had elapsed since his visa cancellation. The Tribunal afforded some weight to the applicant's evidence but ultimately concluded that the purpose of his stay for study was no longer extant, and this weighed in favour of cancellation. The Tribunal applied the principle that decision-makers are entitled to attribute such weight to relevant information as they see fit.

Consequently, the Tribunal affirmed the decision to cancel the applicant's Subclass 500 (Student) visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly to this case these include the ground set out in s.116(1)(g) of the Act, which provides that a visa may be cancelled if a prescribed ground applies to the visa holder. The prescribed grounds for cancellation are set out in r.2.43 of the Regulations. In the present case, the ground in r.2.43(1)(o) is relevant as the delegate reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person. If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy. Does the ground for cancellation exist? The Notice of Intention to Consider Cancellation (NOICC) of the applicant’s Student visa dated 29 August 2017 identified s.116(1)(g) of the Act and r.2.43(1)(o) of the Regulations, in the context of an investigation suggesting a Departmental employee may have acted improperly to grant the visa therefore arousing a reasonable suspicion it was obtained as a result of fraudulent conduct, as the proposed basis for cancellation. The response of the applicant on 8 September 2017 indicated that he did not know of, nor have any complicity in, any inappropriate conduct, he satisfies the criteria for the grant of the visa regardless of any activities of the Departmental employee, he is in Australia meeting his obligations as a student, the ground of cancellation is not established and in any event discretionary factors such as hardship to him and the circumstances being outside of his control should see his visa not be cancelled. Supporting material such as a Statutory Declaration dated 6 September 2017, IELTS English language test results, identity documents, West African Senior School Certificate (the ‘WAEC Certificate’), Attestation of Education Sponsorship (from Dr Ovie Ughwanogho), educational results, confirmation of health insurance, financial records of the education sponsor (Dr Ovie Ughwanogho), and confirmations of enrolment (COE) were also submitted to the Department by the applicant. In summary, the applicant claimed in his response to the NOICC that he had no knowledge of any wrongdoing, satisfies the criteria for the visa and would face terrible hardship if his visa was cancelled for events outside of his control. The Tribunal has duly considered the applicant’s contentions and supporting material in response to the NOICC and affords it some weight against cancellation of his Student visa. For completeness, the Tribunal is satisfied that the NOICC was correctly framed and properly identified the basis of the proposed visa cancellation.

Decision

Reasons for decision

Considering the circumstances as a whole, the Tribunal concludes that the Student visa should be cancelled.DECISION The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.K. ChapmanMember

Ratio Decidendi

Legal Principle Established

For the reasons expressed above, the Tribunal is satisfied that the ground for cancellation in s.116(1)(g) exists. As that ground does not require mandatory cancellation under s.116(3), the Tribunal must proceed to consider whether the power to cancel the visa should be exercised.Consideration of discretion There are no matters specified in the Act or Regulations that must be considered in the exercise of this discretion. The Tribunal has had regard to the circumstances of this case, including matters raised by the applicant, and matters in the Department’s Procedures Advice Manual (PAM3) ‘General visa cancellation powers’. The Tribunal has also very carefully considered the attribution of weight to the evidence before it in assessing whether the applicant’s visa should be cancelled. In doing so, the Tribunal is mindful of the observations of Collier J in Botha v Minister for Immigration and Border Protection [2017] FCA 362 at [39]: There is ample authority at high level in this country that it is for a decision-maker to attribute such weight to relevant information as it sees fit: see for example Kirby J in Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at [24]; Gummow and Hayne JJ in Abebe v Commonwealth (1999) 197 CLR 510 at [197]; the plurality in Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164 at [33]. The applicant’s background has been detailed above. He arrived in Australia as the holder of a Subclass 500 Student visa on 25 March 2017. The applicant’s visa would have been due to expire on 16 October 2020 had it not been cancelled on 11 October 2017. The Tribunal notes that the applicant has not completed any course of study since his arrival in Australia. It is worth pausing to reflect that the applicant has been in Australia for approximately 27 months and some 21 months have elapsed since his Student visa was cancelled. Whilst accepting that the applicant initially studied until his visa was cancelled, the Tribunal is not satisfied that he has made a serious attempt to resume study given the significant passage of time since the visa cancellation. Having regard to the aforementioned matters, the Tribunal does not accept that the applicant genuinely intends to resume his studies in Australia. The Tribunal has paid due regard to the supporting material submitted by the applicant in support of his claim to be a genuine student (including, but not limited to, the WAEC Certificate, his Statutory Declaration dated 6 September 2017, IELTS English language test results, confirmations of enrolment (COE), identity documents, Attestation of Education Sponsorship from Dr Ovie Ughwanogho, educational results, confirmation of health insurance, and financial records of the education sponsor Dr Ovie Ughwanogho) and affords some weight to it. However, following careful consideration, the Tribunal considers that the purpose of the applicant’s stay in Australia for study is no longer extant. Accordingly, the Tribunal finds that this factor weighs in favour of cancelling the applicant’s visa.