Onyemairo (Migration)

[2020] AATA 1384

Onyemairo (Migration) [2020] AATA 1384 (8 April 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nwabueze Jude Onyemairo

CASE NUMBER:  1725445

HOME AFFAIRS REFERENCE(S):          BCC2017/2969039

MEMBER:James Lambie

DATE:8 April 2020

PLACE OF DECISION:  Brisbane

DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 08 April 2020 at 9:14am

CATCHWORDS

MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – fraudulent conduct of any person – local department employees in Pretoria may have bypassed procedures – application processed in four days – documentation – visa would not have been granted without substantial verification – reasonable suspicion of fraud – discretion to cancel visa – enrolment in lower-level course in different subject area – relationship and young child with Australian citizen – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), s 116(1)(g), 362A, 375A, 376

Migration Regulations 1994 (Cth), r 2.43(1)(o)

CASES
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

1. This is an application for review of a decision dated 13 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).

2. The delegate cancelled the visa under s.116(1)(g) on the basis that a prescribed ground for cancelling a visa applies to the applicant, namely, that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person (r.2.43(1)(o)). The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 7 November 2019 to give evidence and present arguments.

4. The applicant was represented in relation to the review by his registered migration agent. The representative attended the Tribunal hearing.

5. 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

6. 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) and r.2.43(1)(o). 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?

7. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(o)) is relevant.

8. The applicant lodged a subclass 500 visa application electronically on 30 March 2017. The visa was granted on 6 April 2017 by the Department’s post in Pretoria, South Africa. The applicant arrived in Australia as the holder of a subclass 500 student – vocational education sector visa on 22 April 2017.

9. The department conducted an investigation into the circumstances leading to the grant of a tranche of subclass 500 student visas at post in Pretoria. The investigation determined that departmental employees may have acted improperly to grant these visas: the visa granted to the applicant was among those identified as improperly granted.

10. On 1 July 2019, the Tribunal sent the applicant (through his representative) copies of documents contained in the departmental and Tribunal files in response to request for written material made under section 362A of the Act, inviting the applicant to comment. Included in this material was a copy of a report entitled“Fraud by Locally Engaged visa Processing Officers at AHC Pretoria; 21 clients granted TU 500 visas through LES VPO corruption; Referral for consideration of these cancellation”, together with a number of annexures.  Because these documents refer to a number of separate visa applicants, Departmental staff and law enforcement methodology, they are heavily redacted under ss 375A and 376.  The applicant’s representative challenged the redactions on the basis that the public interest grounds for them are not made out and requested unredacted copies of those documents to which the Tribunal intended to have regard.  I am satisfied that the redactions made in the documents provided to the applicant are necessary for the protection of the privacy of other individuals and for the purposes of law enforcement.  In any event, I have found no reason to seek recourse to any unredacted documents and am satisfied that the redacted details are neither of any potential assistance to the applicant nor relevant to the determination of the application.

11. The report and the other documents it references describe a Departmental investigation into the conduct of locally engaged staff in Pretoria arising from suspicions that some Nigerian student visa holders had been engaging in criminal activity after arriving in Australia. The investigation determined that two locally engaged staff had bypassed Departmental procedures in granting student visas to a cohort of Nigerian applicants. One of the staff (“Officer A”) had corruptly received payments from a person in Australia (“Mr C”, himself a Nigerian student visa holder). The other staff member (“Officer B”) had been allocated a number of Nigerian student visa applications to process by Officer A and had done so without the scrutiny required by Departmental procedures. Officer A and B were both found to have acted improperly and in breach of their conditions of employment.

12. The applicant’s visa application was processed and approved by Officer B.  The applicant’s visa is discussed in detail in a report titled Investigation Report LES Misconduct (“the Officer B report”) as “allegation six” at paragraphs 123 to 133. The report refers to an allegation that the visa was granted in circumstances where the visa applicant was not genuine and that the visa assessment procedures were knowingly disregarded with the intention of increasing Officer B’s visa output. The report further refers to a review of the applicant’s visa undertaken in May 2017, which concluded that the applicant failed to meet criterion 500.212 (genuine temporary entrant), criterion 500.214 (funds) and criterion 500.217 (PIC 4020: bogus documents). On that basis, the assessment officer found that the criteria for the grant of the visa were not met. More specifically, the assessment officer found that similar courses were available in Nigeria at a lower cost, the course is at a lower level than the applicant had previously studied, the GTE statement provided by him had identical formatting and some similar phrasing to that of another applicant in the cohort, no evidence of nominated employment was provided, the sponsor letter was almost identical to another applicant in the cohort, the education document did not appear genuine and had not been verified, and that the applicant had previously been refused visas into the United States. The applicant’s visa application was processed and approved by Officer B within four days of its receipt.

13. The Officer B report notes that Officers A and B acted to bypass the mandatory allocation of visa application cases via the departmental system so that Officer B could grant visas to Nigerian national clients who would otherwise have faced rigorous assessment through departmental risk profiling. The report notes that, within the duties designated to officer B, she would not have been assigned these cases and the cases were all approved within a time span of 2 to 13 days after lodgement. In Appendix 1 to the report, the applicant is named in the list of clients granted visas in this way by Officer B. The report further notes that Officer B made the grant of the applicant’s visa without the visa application being allocated to her, in circumstances where she was not authorised to process such cases and where she had failed to apply the mandatory guidelines for visa assessment, including rigorous assessment for cases tagged high risk. Notwithstanding that Officer B was neither specifically assigned the application nor authorised to process such applications, departmental systems record that Officer B did not attempt to check the veracity of either the employment or the past education claims made by the applicant, contrary to mandatory procedural requirements.

14. In submissions and at the hearing, the applicant sought to challenge those findings and to invite positive findings that he did at the relevant time, meet the relevant criteria. While I have doubts as to whether that is the correct approach, I accepted his submissions and documents into evidence. I would, however, observe that it appears quite clear from the Departmental material that the original delegate could not have and did not conduct any proper assessment of the visa application. The application was processed in a very short time and there were no steps taken to verify vital aspects against the required criteria.

15. Notwithstanding my reservations expressed above, I have given careful consideration to the submissions and documents provided by the applicant. The applicant’s first submission was that it cannot be established that the applicant was personally involved in the commission of any fraud. It is, of course, understood by the applicant that the ground for cancellation is the fraud “of any person” but I accept that it is appropriate in a case where the fraud is alleged to have been committed by another without the knowledge of the applicant to consider the circumstances more closely than where the fraud is that of the applicant. In particular, it is relevant to consider whether, absent the fraud, the visa would have been granted in any event.

16. Unhelpfully, copies of the documents lodged with the visa application, other than the applicant’s passport, his degree certificate, a letter in respect of his academic progress and a document purporting to be the official transcript of his academic record in respect of his biochemistry degree, were not provided with the departmental file or by the applicant. The only additional documents provided by the applicant consist of some Commonwealth Bank records for the period August to October 2017, enrolment records pertaining to the courses undertaken in Australia, and some documents related to those courses. The applicant accepts that the document in respect of his employment only provided contact details and that payslips were not included, due to the fact that his employer did not provide them. The applicant’s agent provided written submissions attesting to the provision of the material required to accompany the Visa application but did not annex copies or to seek to address the identified deficiencies, other than to explain the lack of payslips.

17. At the hearing, the applicant disputed the findings in the Officer B report.  He claimed that all of the documents submitted by him were genuine, that his statement of purpose and sponsor letter were drafted by him and his sponsor without assistance and that their striking similarities to those submitted by others in the cohort was a mystery. As to the adequacy of funds, the applicant said that his uncle was his principal sponsor but that he had some savings of his own. There was no material before me to support or contradict that statement. He the applicant insists that the academic document, s (which were in evidence) are genuine. That may very well be the case, but I observe that the academic transcript appears to have been compiled in a very amateur fashion, does not contain any form of verification code and, unusually, is stamped “confidential” throughout. This may be a feature of tertiary institutions in Nigeria, but the quality of the documentation should have placed a visa processing officer on enquiry as to their veracity. The uncontested evidence is that no such enquiry was made.

18. The applicant gave evidence that he had volunteered the fact of his having been refused a visa to the United States. His visa application states, “I applied for United States visiting visa on 2 March 2017 but was refused for nongenuine reason and was given a yellow paper and was told that I was welcome to reapply again.” While I accept that the applicant gave an honest response to the question (as he was obliged to do), it cannot be accepted that this would have escaped the attention of a visa processing officer charged with applying rigorous attention to visa applications of this nature.

19. On balance, I am satisfied that the application, as lodged, does not satisfy the Schedule 2 criteria.  I am also satisfied that, on the basis of that material and the material subsequently submitted, the visa would not have granted without substantial verification having to be undertaken.

    A reasonable suspicion that the visa was obtained as a result of the identified fraud

20. Having regard to all of the material above I have carefully considered whether the prescribed ground for visa cancellation exists. Departmental policy as to the scope of fraudulent conduct provides:

    ’Fraudulent conduct’ is not defined in the act or regulations. The Macquarie dictionary defines fraud as “advantage gained by unfair means, as by a false representation of fact made knowingly, all without belief in its truth, or recklessly, not knowing whether it is true or false”.

    ‘Any person’ means the visa holder or any other person, including a Departmental employee.

    Reasonable suspicion that a visa has been obtained as a result of fraudulent conduct[1]

    The delegate must reasonably suspect that the visa was obtained as a result of the fraudulent conduct of any person. That is, it is not enough to reasonably suspect that there was fraudulent conduct by a person – the delegate must reasonably suspect that if it were not for the fraudulent conduct the visa would not have been granted.

    [1] Procedures Advice Manual (PAM3), compilation 1 July 2019, ‘General visa cancellation powers (s109, s116, s128, 134B and s140)’

21. When assessing the ground for cancellation, the term ‘reasonably suspects’ requires a causal link to be drawn between the obtaining of the visa and the fraudulent conduct of any person. It is not necessary for the decision maker to be satisfied that the visa holder has been involved in or is aware of the fraudulent conduct.[2]

    [2] Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [22]

22. Guidance is available as to how a decision-maker ‘reasonably suspects’ the fraudulent conduct. It is not necessary for the decision-maker to be satisfied that the visa was obtained by fraud – a reasonable suspicion is sufficient[3]. A reasonable suspicion must be founded on objective circumstances, which are more than mere surmise or conjecture[4]. The factual foundation required to ground a reasonable suspicion is less than that required for a belief[5]. Whether a different decision-maker would have formed the same state of suspicion is irrelevant: what matters is that the state of reasonable suspicion reached by the Tribunal is open to it on the facts[6]. The evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend[7]. It does not require the evidence be such that the Tribunal’s reasonable suspicion was of facts established on the balance of probabilities[8]. Whether a suspicion is reasonable is a question of fact to be determined in the light of all surrounding circumstances applicable to the particular case[9]. The required state of mind is suspicion, not belief, so that the facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown[10].

    [3] Ibid

    [4] Sun v Minister for Immigration and Border Protection [2016] FCAFC at [86], citing George v Rockett (1990) 170 CLR 104, 115-116

    [5] Ibid at [48]

    [6] Ibid

    [7] Rani v Minister for Immigration and Border Protection [2015] FCCA 445 at [18]

    [8] Ibid

    [9] Guo v Commonwealth of Australia [2017] FCA 1355 at [44]; Patel v Minister for Immigration and Border Protection, supra, at [23]

    [10] Guo v Commonwealth of Australia, supra, at [35]

23. It was submitted on behalf of the applicant that, while accepting that a departmental employee may have been fraudulent, it could not be accepted that his visa was obtained as a result of any fraud.

24. On the basis of the material available to me (and to the applicant), I am satisfied that the facts and matters described in paragraph 12 and 13, which have been subject to a rigorous departmental investigation, apply to the processing of the applicant’s visa. I am further satisfied that those matters constitute the fraudulent conduct of another person.

25. In order to form a reasonable suspicion that the applicant’s visa was granted as a result of the fraudulent conduct, there would need to be some evidence that the visa would not have been granted but for the fraud. Contrary to the applicant’s submissions, and as outlined in paragraphs 16 to 19 above, it appears clear to me that the applicant did not provide all the vital documents at the time and that, on the basis of the visa application as lodged, the visa if properly processed would not have been granted.

26. When I take into account the fact that the visa was granted within the space of four working days from application with the inadequacies as to information and documents discussed above, and when that visa has been processed as described in paragraph 12, I am satisfied that there is a reasonable suspicion that the applicant visa was obtained by the fraudulent conduct of Officer B. In making this finding, I have had regard only to the circumstances of the applicant visa application and not to the other cases in this cohort.

27. For these reasons, 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 visa should be cancelled.

    Consideration of discretion

28. 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’.

29. The applicant gave oral evidence as to the consequences and hardships to which he might be subject if the visa would be cancelled.  I also received and have given careful consideration to the detailed written submissions of his representative and to the supplementary submissions lodged after the hearing.

30. I have considered the purpose of the applicant’s travel to and stay in Australia and whether he has a compelling need to travel to or remain in Australia. He arrived in Australia on 22 April 2017 as the holder of a subclass TU 500 vocational education visa.  He has produced correspondence from Frontier Education offering him enrolment as an international student for a Certificate IV in commercial cookery for the 2020 academic year. while I am not convinced that a vocational course in commercial cookery necessarily represents a logical progression from the applicant’s honours degree in biochemistry, I accord some weight to these matters in his favour.

31. I have considered the extent of his compliance with his Visa conditions. The evidence is that he has complied with them and I am not aware of any breaches. He provided evidence that he has paid his tuition, maintained his enrolment and achieved satisfactory results. His representative further submitted that the applicant has fully complied with the terms of his bridging visas despite the restrictions on work and study. I give these matters some weight in his favour.

1. I have considered the degree of hardship that may be caused to the applicant and any family members. Late in the hearing, and only in response to my specific questions, the applicant disclosed that he is in a de facto relationship with an Australian citizen and that together they have a daughter, born June 2019. The details of this relationship were expanded upon in the supplementary submission at my request. The representative submitted that the applicant did not include his daughter in his original submissions on the question of hardship because the applicant does not view his daughter as a hardship. This submission makes little sense and misconceived the relevant test. The representative further submits that cancellation of the visa would cause hardship to the partner and daughter by causing separation of the family unit and disrupting the upbringing of the daughter. I accept this submission and accord it a degree of weight, but note that it must, at all times, have been clear to both the applicant and his partner that he was in Australia on a temporary visa and that he must, at some stage, return to Nigeria.

2. The applicant further submitted at the hearing that the cancellation of his visa would have an effect on his family at home in Nigeria. He is the eldest of five siblings (aged 29, 27, 25 and 23) who look to him for direction and support. He claims that two of them are studying, one at a polytechnic and one at a seminary and that he provides material support to them. No evidence of this was provided and I am doubtful, in the ordinary course, that significant resources are expected from a family to support a seminarian.

3. The applicant also submitted that he had expended considerable sums of money in furthering his education in Australia. In particular, his representative noted that, at the time of the cancellation, he was undertaking a Certificate IV in commercial cookery at lifetime international training college and had placed at risk about $3400 in course fees. I give these matters some weight in his favour. No additional submission or evidence was provided as to emotional or psychological hardship.

4. The ground for cancellation of the visa arose in circumstances where it appears clear from the evidence that a departmental employee engaged in fraudulent conduct to grant the visa. There are apparent deficiencies and very strong grounds for further enquiry arising from the visa application, to which I have referred above I am satisfied that, but for the fraudulent conduct, Visa would not have been granted on the basis of the information in the application and there are significant doubts whether it would have been granted at all. I give some weight in favour of the applicant that the fraudulent conduct is not alleged to have been undertaken by him, balanced against the circumstances I have described.

5. There is no indication of any adverse behaviour towards the Department. I give this a degree of weight in the applicant’s favour.

6. There are no dependent visa holders who face any consequential cancellation should the applicant’s visa be cancelled.

7. Should the visa be cancelled, the applicant will become an unlawful noncitizen and become liable for detention under section 189, and removal under section 198, of the Migration Act. He may be eligible for a temporary bridging visas should there be further matters that need to be resolved. If the visa were to be cancelled, he would be subject to section 48 of the Act which may limit his options in applying for further visas in Australia. He may also be affected by Public Interest Criterion 4013 limiting the grant of a further temporary visa for a specified period. All of these legal consequences I have taken into account and given some weight to in favour of the applicant.

8. There was no submission to the effect that any of Australia’s international obligations might be invoked in respect of this application and there is no suggestion that a non-reform and obligation arises. I therefore attach no weight to this factor.

9. Taking all of these factors into account, I give the most significant weight to my finding that the visa was granted as a result of the fraudulent conduct of the departmental employee. In the applicant’s favour, I give the most significant weight to the hardship that might arise from cancellation and to his compliance with his visa conditions.

10. The fact that a visa may have been granted as a result of fraudulent conduct, whether of the applicant or another person, is a serious matter going to the integrity of the immigration system. In this matter, as I have noted above, there remain deficiencies, questions and concerns arising from the application that have not been addressed or that would require further enquiries by a visa processing officer.

11. Considering the circumstances as a whole, the Tribunal concludes that the Visa should be cancelled.

    DECISION

12. The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

    James Lambie
    Senior Member