Ukwesan (Migration)

Ukwesan (Migration) [2019] AATA 4101 (2 September 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Ufuoma Matthew Ukwesan
CASE NUMBER:  1726157
DIBP REFERENCE(S):  BCC2017/2673821
MEMBER:K. Chapman
DATE:2 September 2019
PLACE OF DECISION:  Brisbane
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 02 September 2019 at 3:38pm
CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – declined to attend review hearing – no response to invitation to provide further information – Tribunal declined indefinite adjournment of decision – ground for cancellation – bogus document – school certificate – IOM verification report – visa granted by corrupted officer – deficiencies in application – consideration of discretion – integrity of Australia’s student visa program – visa grant based on incorrect information in bogus document – knowingly caused the bogus document to be provided to the Department – not a genuine temporary entrant – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 5, 103, 107, 109, 360
CASES
Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617
Manna v Minister for Immigration and Citizenship [2012] FMCA 28
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 500 (Student) visa under s.109(1) of the Migration Act 1958 (‘the Act’).
On 16 October 2017, the delegate cancelled the visa on the basis that the applicant had not complied with s.103 of the Act by providing, or causing to be provided, a bogus document to the Department in support of his Student visa application, specifically the ‘West African Examinations Council (WAEC) West African Senior School Certificate’ dated December 2010 with Certificate Number 210101.
On 25 October 2017, the applicant applied to the Tribunal for review of the visa cancellation decision. He subsequently provided a copy of that visa cancellation decision to the Tribunal. During the review process, correspondence passed between the Tribunal and the applicant’s registered migration agent (‘the representative’) as will be outlined in further detail.
The applicant was invited to attend a review hearing scheduled for 16 August 2019 however on 13 August 2019 he declined that invitation, requesting the Tribunal to make a decision on the documentary material before it. Following careful consideration, the Tribunal is satisfied that the applicant consented to it deciding the review without him appearing before it pursuant to s.360(2)(b) of the Act.
On 15 August 2019, the Tribunal wrote to the applicant pursuant to s.359A of the Act, through the representative, inviting him to comment on or respond to certain information. At the time of this decision, the Tribunal has received no response to the aforementioned invitation. The Tribunal has carefully considered whether to afford further time to the applicant to provide a response to the aforementioned invitation, or to provide further material in support of his application for review. In doing so, it has paid careful regard to the guidance in the decisions of Huo v Minister for Immigration and Multicultural Affairs [2002] FCA 617 and Manna v Minister for Immigration and Citizenship [2012] FMCA 28 where the Courts held that the Tribunal is not required to indefinitely defer its decision-making processes.
The Tribunal notes that the applicant failed to respond to the s.359A invitation dated 15 August 2019 by the due date of 29 August 2019. Further, the Tribunal notes that no additional time has been requested by the applicant to respond to the aforementioned invitation, or to provide further material in this review. As previously described, the applicant also declined to attend a review hearing. On balance, having regard to the aforementioned matters, the Tribunal is satisfied that the applicant has been afforded a fair opportunity to present his case and he does not intend to provide any further material in support of his application for review.
Following careful consideration, the Tribunal has decided to proceed to make a decision on this review without taking any further action to obtain the information referred to in the s.359A invitation of 15 August 2019. Accordingly, the Tribunal has made its decision on this review application having due regard to the documentary material before it.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed.
BACKGROUND
The visa cancellation decision record of 16 October 2017, a copy of which was provided to the Tribunal by the applicant, reveals the following particulars:
a.on 10 December 2016, the applicant made an application for a Subclass 500 Student visa;
b.the West African Examinations Council (WAEC) West African Senior School Certificate dated December 2010 with Certificate Number 210101 was submitted with the Student visa application;
c.on 15 December 2016, the applicant was granted a Subclass 500 Student visa;
d.on 31 December 2016, the applicant arrived in Australia;
e.on 5 June 2017, the International Organization for Migration (IOM) in Nigeria was requested by the Australian High Commission in Pretoria, South Africa to undertake an authentication check of the WAEC Senior School Certificate;
f.on 5 July 2017, the IOM advised the Australian High Commission in Pretoria that the WAEC Senior School Certificate was checked by the issuing authority and the candidate’s number, name and subject grades did not match any of their records and was therefore counterfeit;
g.on 30 August 2017, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC) of his visa;
h.on 14 September 2017, the applicant responded in writing to the NOICC refuting knowledge of any fraudulent activity, denying the provision of a false or misleading document or requesting another to provide it on his behalf, 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
i.on 16 October 2017, the delegate cancelled the applicant’s Subclass 500 Student visa pursuant to s.109(1) of the Act.
On 25 October 2017, the applicant applied to the Tribunal for review of the visa cancellation decision. He subsequently provided a copy of that visa cancellation decision to the Tribunal. On 11 June 2019, the Tribunal Registry sent copies of documents contained in the Departmental and Tribunal files in response to a request for access to written material pursuant to s.362A of the Act. Much of the material was despatched in redacted form, being subject to non-disclosure certificates issued by the Department and also to the privacy considerations contained in Australian Privacy Principle 6 (APP 6). Included in the aforementioned material was a copy of the ‘Referral to General Cancellations Network Cancellation Consideration’ document, ‘Visa Cancellation Referral Report’ prepared by the Enforcement Command – Investigations of the Australian Border Force, two ‘Investigation Report LES Misconduct’ documents pertaining to Locally Engaged Staff (LES) at the Australia High Commission (AHC) in Pretoria, South Africa, and an ‘Investigation into the Nigerian Student Caseload Processed in Pretoria’ of March 2017 (also known as the ‘Key findings PMOI’ document).
In summary, the investigative reports referred to above outline that the Department launched an investigation into the conduct of Locally Engaged Staff in Pretoria when suspicions were raised that some Nigerian Student visa holders were engaging in criminal activity following their arrival in Australia. The investigation concluded that two Locally Engaged Staff were bypassing established Departmental procedures when granting Student visas to a cohort of Nigerian applicants. One of the staff, whom the Tribunal will refer to as Officer A, was found to have corruptly received payments from a third party in Australia (whom the Tribunal shall refer to as Mr C, who was himself granted a Student visa). The other staff member, whom the Tribunal will refer to as Officer B, was found to have been allocated certain Nigerian Student visa applications to process by Officer A and processed them without sufficient scrutiny in an improper manner contrary to established Departmental procedures. Officers A and B were also found to have colluded with each other during the investigation into their alleged activities. In sum, neither Officer A nor B had legitimate authority to process the Nigerian Student visa applications according to established Departmental procedures and they were both found to have acted improperly in breach of their conditions of employment.
The applicant lodged his Student visa application on 10 December 2016 and the visa was granted by Officer A on 15 December 2016. The investigative reports indicate that Student visa applicants from Nigeria are deemed to be ‘high risk’ applicants who are subject to greater scrutiny in relation to the processing of such applications (see the document ‘Student visa Assessment methodology’ at folios 164-179 of Departmental file BCC2017/2673821, which was raised with the applicant pursuant to s.359A of the Act as is referred to in greater detail below). Further, the Department engaged a senior Australian based Officer (the ‘Subject Matter Expert’) to conduct an audit on a selection of Nigerian Student visa holders who were alleged to have been granted their visas contrary to the established procedures for high risk applicants.
The applicant was one such individual subject to audit (see the document ‘Student (subclass 500) visa assessment – schedule 2’ at folios 153-163 of Departmental file BCC2017/2673821, which was raised with the applicant pursuant to s.359A of the Act as is referred to in greater detail below). The Subject Matter Expert concluded that the applicant failed to meet the requirements for the Student visa at the time of its grant. This conclusion is also reflected in the ‘Investigation Report LES Misconduct’ pertaining to Officer A (see ‘Allegation Eight’ at folio 11 of Departmental file BCC2017/2673821, which was raised with the applicant pursuant to s.359A of the Act as is referred to in greater detail below).
As previously indicated, much of the material in the Departmental and Tribunal files was subject to redaction on the basis of non-disclosure certificates issued by the Department and also on account of the privacy considerations contained in Australian Privacy Principle 6 (APP 6). Liaison between the Tribunal and the Department regarding the issue of non-disclosure resulted in an initial certificate pursuant to s.375A of the Act dated 22 November 2017, in relation to file BCC2017/2673821, being revoked on 26 February 2018. It was replaced with a certificate pursuant to s.376 of the Act dated 26 February 2018. Further material was supplied by the Department to the Tribunal under cover of a certificate pursuant to s.376 of the Act dated 17 April 2018. In addition, the Department file BCC2016/4173325, pertaining to the applicant’s Student visa application, is also subject to a certificate pursuant to s.375A of the Act. The presence of the non-disclosure certificates and associated redaction of material was canvassed with the applicant by the Tribunal in correspondence pursuant to s.359A of the Act (with copies of the non-disclosure certificates enclosed) as is referred to in greater detail below.
On 11 June 2019, pursuant to s.359A of the Act, the Tribunal wrote to the applicant inviting him to comment on or respond to the following information:
·It is alleged that you provided or caused to be provided a bogus document to the Department of Immigration and Border Protection (now the Department of Home Affairs or ‘the Department’), namely ‘The West African Examinations Council (WAEC) West African Senior School Certificate’ dated December 2010 with Certificate Number 210101, as indicated by the assessment of the International Organization for Migration (IOM) and associated referral documentation (see folios 63-66 of Department file BCC2017/2673821 and folios 83-86 of Department file BCC2016/4173325);
·It is alleged that you were granted your Student visa by a Departmental Officer in an inappropriate manner including by way of your case not being allocated to them or processed in accordance with established Departmental procedures during a period where it is alleged that several visa applicants were inappropriately granted Student visas by staff at the Australian High Commission at Pretoria, South Africa (see folios 1-30 ‘Investigation Report LES Misconduct’ (aka Officer A), folios 31-56 ‘Investigation Report LES Misconduct’ (aka Officer B), folios 57-62 ‘Visa Cancellation Referral Report’ and the associated Annexures to these Reports including but not limited to ‘Key Findings page PMOI Nairobi Report’ at folios 151-152 and a detailed assessment of your circumstances by a Departmental Subject Matter Expert at folios 153-163 of Department file BCC2017/2673821, and also the ‘Referral to the General Cancellations Network Cancellation Consideration’ at folios 67-69 of Department file BCC2017/2673821, and the contents of Departmental file BCC2016/4173325 pertaining to your application for the Student visa);
·The Tribunal notes that portions of the above information contained in the Departmental files are subject to Certificates pursuant to s.376 of the Act dated 26 February 2018 and 17 April 2018 (noting an earlier Certificate pursuant to s.375A of the Act dated 22 November 2017 was revoked by the Department on 26 February 2018) and also a Certificate pursuant to s.375A of the Act dated 31 July 2018. Accordingly, you have been provided with redacted copies of the relevant information. You are invited to make submissions on the validity of the aforementioned Certificates if you wish to do so; and
·The Tribunal file at folios 27-41 contains your records of study from the Provider Registration and International Student Management System (PRISMS) indicating limited course completion by you.
In response to the s.359A invitation, on 25 June 2019 the Tribunal received uploaded documents including, but not limited to, written submissions dated 24 June 2019, identity documents (for the applicant and financial sponsor), financial records, a statement from the financial sponsor, an English language test result, confirmation of health insurance coverage, a WAEC West African Senior School Certificate dated December 2002 with Certificate Number 2570969, a currency exchange conversion calculation and confirmations of enrolment (COE). All submitted material has been duly considered by the Tribunal.
On 13 August 2019, as previously outlined, the applicant declined to attend the scheduled review hearing and consented to the Tribunal deciding the review without him appearing before it. Given that the applicant declined to participate in a review hearing, the Tribunal determined to raise further information with him pursuant to s.359A of the Act. In the interests of fairness, the Tribunal also included in the aforementioned correspondence the information contained in the earlier s.359A invitation. Accordingly, on 15 August 2019, pursuant to s.359A of the Act, the Tribunal wrote to the applicant inviting him to comment on or respond to the following information:
·It is alleged that you provided or caused to be provided a bogus document to the Department of Immigration and Border Protection (now the Department of Home Affairs or ‘the Department’), namely ‘The West African Examinations Council (WAEC) West African Senior School Certificate’ dated December 2010 with Certificate Number 210101, as indicated by the assessment of the International Organization for Migration (IOM) and associated referral documentation (see folios 63-66 of Department file BCC2017/2673821 and folios 83-86 of Department file BCC2016/4173325);
·It is alleged that you were granted your Student visa by a Departmental Officer in an inappropriate manner including by way of your case not being allocated to them or processed in accordance with established Departmental procedures during a period where it is alleged that several visa applicants were inappropriately granted Student visas by staff at the Australian High Commission at Pretoria, South Africa (see folios 1-30 ‘Investigation Report LES Misconduct’ (aka Officer A), folios 31-56 ‘Investigation Report LES Misconduct’ (aka Officer B), folios 57-62 ‘Visa Cancellation Referral Report’ and the associated Annexures to these Reports including but not limited to ‘Key Findings page PMOI Nairobi Report’ at folios 151-152 (where it is indicated there is active organised people smuggling of Nigerian citizens through the use of fraudulent documentation to obtain Student visas facilitated by a locally engaged employee and it is almost certain that a locally engaged employee ‘is receiving money in return for granting student visas containing false information and fraudulent documents’), and a detailed assessment of your circumstances by a Departmental Subject Matter Expert at folios 153-163 of Department file BCC2017/2673821, and also the ‘Referral to the General Cancellations Network Cancellation Consideration’ at folios 67-69 of Department file BCC2017/2673821, and the contents of Departmental file BCC2016/4173325 pertaining to your application for the Student visa);
·The ‘gist’ of the material contained at folios 164-179 of Department file BCC2017/2673821, which has not been released in full to you, is information recorded in a document entitled ‘Student visa Assessment methodology’ (and attachments) which provides guidance to Departmental Officers for the processing of Student visa applications including the necessity to perform certain checks upon information such as that relating to identity, enrolment, English language ability, previous study, employment, finances and character. Relevantly for offshore applicants considered to be ‘high risk’, more rigorous scrutiny is given to examination of the Genuine Temporary Entrant requirement such as checking employment and education documents for any evidence of fraud, checking study and employment history particulars and also assessing the other relevant circumstances of the applicant such as financial sponsorship in a more detailed fashion. Generally, an applicant would be interviewed by a Departmental Officer in relation to such visa applications;
·The Departmental file BCC2017/2673821 at folios 153-163 contains an audit by a Departmental Subject Matter Expert of your Student visa application. The Departmental Subject Matter Expert determined that you did not satisfy cl.500.212 (the Genuine Temporary Entrant requirement) as your submitted Genuine Temporary Entrant statement, sponsor letter and ‘The West African Examinations Council (WAEC) West African Senior School Certificate’ were similarly worded to those submitted by others granted Student visas by Departmental Officers suspected of granting visas fraudulently. Additionally, the Departmental Subject Matter Expert was not satisfied that you had an employment related incentive to return to Nigeria. Further, the Tribunal notes that Departmental file BCC2016/4173325 pertaining to your application for the Student visa contains the aforementioned particulars referred to by the Departmental Subject Matter Expert. For completeness, the Tribunal also notes that Ministerial Direction 69 requires decision makers to consider a range of factors with respect to the Genuine Temporary Entrant requirement including an applicant’s circumstances in their home country, potential circumstances in Australia and value of the course to their future, their immigration history, matters related to minors and any other relevant matters;
·The Tribunal notes that portions of the above information contained in the Departmental files are subject to Certificates pursuant to s.376 of the Act dated 26 February 2018 and 17 April 2018 (noting an earlier Certificate pursuant to s.375A of the Act dated 22 November 2017 was revoked by the Department on 26 February 2018) and also a Certificate pursuant to s.375A of the Act dated 31 July 2018. Accordingly, you have previously been provided with redacted copies of the relevant information. You are invited to make submissions on the validity of the aforementioned Certificates, which have previously been provided to you, if you wish to do so; and
·The Tribunal file at folios 27-41 contains your records of study from the Provider Registration and International Student Management System (PRISMS) indicating limited course completion by you.

The due date for response to the above s.359A invitation was 29 August 2019. As previously outlined, at the time of this decision, no response from the applicant has been received by the Tribunal.
Validity of the Non-Disclosure Certificates
The Tribunal notes that no submissions were made by the applicant challenging the validity of the non-disclosure certificates. The Tribunal is satisfied that the s.376 certificates dated 26 February 2018 and 17 April 2018 are valid as public interest grounds are properly outlined in them. Following careful consideration, the Tribunal has exercised its discretion not to release the redacted material under cover of the certificates given the public interest grounds outlined (noting also that redactions have been made in accordance with APP 6). The Tribunal notes that much of the redacted material relates to third parties and is not relevant to this review.
Further, the Tribunal is satisfied that the s.375A certificate dated 31 July 2018 is valid given the public interest ground cited therein. This certificate pertains to a portion of the IOM verification report, regarding the West African Examinations Council (WAEC) West African Senior School Certificate dated December 2010 with Certificate Number 210101, which would reveal the processes involved in conducting the verification. Accordingly, given the validity of the s.375A certificate, the Tribunal has not released that portion to the applicant. The Tribunal notes that the bulk of the verification report, including its conclusions, is not covered by the s.375A certificate and was released in its original format to the applicant through the s.359A correspondence.
Following careful consideration, the Tribunal is satisfied that ‘the gist’ of all relevant material which is redacted on account of the s.375A and s.376 certificates has been raised with the applicant pursuant to the s.359A correspondence. For the sake of completeness, the Tribunal also notes that it has not placed any weight in an adverse fashion upon material not disclosed in full to the applicant unless specifically referred to pursuant to the procedure in s.359A of the Act.
ISSUES AND LAW
The issues in the present case are whether the ground for cancellation is made out, and if so, whether the visa should be cancelled. Subsection 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
By virtue of s.107A of the Act, the possible non-compliances that may be specified pursuant to s.107 include non-compliances in respect of any previous visa held by a person.
CONSIDERATION OF CLAIMS AND EVIDENCE
The applicant contends that he did not submit a bogus document to the Department, was never involved in any wrongdoing, and that he satisfies the criteria for the grant of the Student visa. The Tribunal notes that the applicant responded to the Notice of Intention to Consider Cancellation (NOICC) of the visa, through his representative, on 14 September 2017 by way of written submissions enclosing a WAEC West African Senior School Certificate dated December 2002 with Certificate Number 2570969 and information pertaining to records management in Nigeria. The Tribunal has duly considered the aforementioned information.
In response to the s.359A invitation on 25 June 2019, the Tribunal received uploaded documents including, but not limited to, written submissions dated 24 June 2019, identity documents (for the applicant and financial sponsor), financial records, a statement from the financial sponsor, an English language test result, confirmation of health insurance coverage, a WAEC West African Senior School Certificate dated December 2002 with Certificate Number 2570969, a currency exchange conversion calculation and confirmations of enrolment (COE). All submitted material has been duly considered by the Tribunal.
In submissions to both the Department and to the Tribunal, the applicant maintains that he has no knowledge of how the West African Examinations Council (WAEC) West African Senior School Certificate dated December 2010 with Certificate Number 210101 came to be submitted with his visa application. He maintains that he passed his schooling as demonstrated by submission of a WAEC West African Senior School Certificate dated December 2002 with Certificate Number 2570969. Additionally, he contends that he had no need to submit the School Certificate dated December 2010. Further, submissions were made that the applicant innocently relied upon a third party to assist with his Student visa application, a matter to which the Tribunal shall return.
As previously outlined, the applicant submitted documents in support of his contention that he meets the criteria for the grant of the Student visa such as identity documents (for the applicant and financial sponsor), financial records, a statement from the financial sponsor, an English language test result, confirmation of health insurance coverage, a WAEC West African Senior School Certificate dated December 2002 with Certificate Number 2570969, a currency exchange conversion calculation and confirmations of enrolment (COE). The applicant maintains that he was genuinely studying up until the time his visa was cancelled and he has the intention to continue his studies, however he has not committed funds and effort to resume these studies until the outcome of the review is known. He maintains that he has abided by all visa conditions in Australia.
The applicant contends that he will face hardship if his Student visa is cancelled because he and his family have invested considerable funds for him to study in Australia, he will face considerable shame if he returns to Nigeria without completing his studies, he will be denied the opportunity for further study in this country and he will likely be unable to return to Australia. It is contended that it would be unfair for the applicant as an innocent victim to have his Student visa cancelled.
Did the notice comply with the requirements in s.107?
Section 107 of the Act is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.
The Tribunal notes that the Notice of Intention to Consider Cancellation (NOICC) of the visa dated 30 August 2017 was properly sent to the applicant by email. He responded to it, through his representative, on 14 September 2017 as previously outlined. The Tribunal has considered the validity of the NOICC and is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues. In the present matter, the Tribunal is satisfied that the delegate had reached the necessary state of mind to engage s.107 of the Act and that the notice issued under s.107 of the Act complied with the statutory requirements.
Was there non-compliance as described in the s.107 notice?
A central issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice. The non-compliance identified and particularised in the s.107 notice was non-compliance with s.103 of the Act, which concerns the provision of bogus documents.
The term ‘bogus document’ is defined in s.5(1) of the Act (see the attachment to this decision). This definition includes a document that is ‘counterfeit’. The delegate formed the view, that on the basis of the IOM verification report of 5 July 2017, the WAEC West African Senior School Certificate dated December 2010 with Certificate Number 210101 is counterfeit. The Tribunal accepts and notes that the ordinary English language meaning of ‘counterfeit’ is recorded in the Macquarie Dictionary (online edition) as:
an imitation designed to pass as an original.[1]
[1] Macquarie Dictionary (online edition), accessed 31 August 2019.
The Tribunal has carefully considered the IOM verification report dated 5 July 2017, which indicates that the WAEC West African Senior School Certificate dated December 2010 with Certificate Number 210101 is not genuine and is counterfeit. Given the standing of the IOM and its ability to conduct verification checks in Nigeria, the Tribunal places high weight upon their assessment. The Tribunal notes that the applicant disavows knowledge of how the document came to be submitted with his visa application and points to poor record keeping in Nigeria, or unscrupulous agents in that country, as explanations for its existence. The Tribunal prefers the evidence of the IOM, given its credentials, to that submitted by the applicant concerning the genuineness of the document. Following careful consideration, the Tribunal finds that the document is counterfeit and is a bogus document pursuant to s.5(1) of the Act.
The Tribunal notes that the applicant submitted a WAEC West African Senior School Certificate dated December 2002 with Certificate Number 2570969 to both it and the Department, contending that he had the necessary secondary education and therefore would not need to submit the document determined to be counterfeit by the IOM. It is apparent that the counterfeit document dated 2010 records more subjects, with higher grades, than the document dated 2002. Further, the Tribunal notes that the applicant’s photograph is attached to the counterfeit document. On balance, the Tribunal does not accept the contention of the applicant that he would have no reason to submit the 2010 dated document given the aforementioned matters.
The Tribunal has carefully considered the contents of the Departmental Subject Matter Expert audit of the applicant’s Student visa application contained at folios 153-163 of Departmental file BCC2017/2673821. The Departmental Subject Matter Expert determined that the applicant did not satisfy cl.500.212 (the Genuine Temporary Entrant requirement) as his submitted Genuine Temporary Entrant statement, sponsor letter and the WAEC West African Senior School Certificate were similarly worded to those submitted by others granted Student visas by Departmental Officers suspected of granting visas fraudulently. Additionally, the Departmental Subject Matter Expert was not satisfied that the applicant had an employment related incentive to return to Nigeria. Of note, the applicant was granted his Student visa by Officer A, who was found in the investigative reports to have corruptly received payments from Mr C in Australia. The grant of that visa was made by Officer A five days after the visa application was lodged.
The Tribunal notes that in submissions dated 24 June 2019 it is contended that the applicant was directed by his brother, Father Jude Ukwesan, upon recommendation of a fellow Reverend, to a Mr Peterson Nwabuokei (‘Petersen’) in Australia to discuss potential study. It was further contended that Petersen undertook the arrangements for the applicant’s Student visa. In summary, the applicant maintains that he was not involved in any wrongdoing and relied upon Petersen. However, in earlier submissions dated 13 September 2017 in response to the NOICC, it is contended at paragraph 11 that “Mr Ukwesan heard about studying in Australia and met an Agent who was kind enough to travel to Mr Ukwesan’s home for their meetings and communication. The Agent had expressed that he had a very high success rate and could get Visas processed quickly because of his reputation for doing quality work. People can be very convincing, and I suspect that when dealing with this person, Mr Ukwesan was the lamb and the Agent the wolf.” In the view of the Tribunal, inconsistent information has been provided as to the location and particulars of the representative who assisted the applicant with his Student visa application. In the earlier narrative the agent is located in Nigeria and visits the applicant’s home, whereas in the later version the agent is Petersen who is operating from Australia. Such inconsistency undermines the credibility of the contentions that have been advanced on behalf of the applicant.
On balance, the Tribunal does not accept that the applicant is an innocent party regarding the provision of the bogus document to the Department for the following reasons. The bogus document contains his photograph and its contents, along with the lodged Genuine Temporary Entrant statement and sponsor letter, are similarly worded to those submitted by others granted Student visas by Departmental Officers suspected of granting visas fraudulently as identified by the Departmental Subject Matter Expert. That the applicant also lacked an employment related incentive to return to Nigeria reinforces that his personal circumstances at the time of the visa application were not such as to permit the grant of the Student visa without further enquiry.
Additionally, the inconsistent submissions regarding the location and particulars of the representative who assisted the applicant with his Student visa application cause concern for the Tribunal regarding the credibility of the applicant. Further, it is worth pausing to reflect that the applicant’s visa was granted expediently by Officer A, who was found to have corruptly received payments. When the aforementioned matters are considered in combination, the Tribunal finds it is implausible, to the point of being fanciful and far-fetched, that the applicant was not involved in the provision of the bogus document to the Department. Accordingly, the Tribunal finds that the applicant knowingly caused the WAEC West African Senior School Certificate dated December 2010 with Certificate Number 210101 to be provided to a Departmental Officer in connection with his Student visa application. That document is a bogus document for reasons previously expressed.
Therefore, the Tribunal finds that there was non-compliance with s.103 of the Act by the applicant in the way described in the s.107 notice.
Should the visa be cancelled?
As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:
·     the correct information;
·     the content of the genuine document (if any);
·     whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;
·     the circumstances in which the non-compliance occurred;
·     the present circumstances of the visa holder;
· the subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;
·     any other instances of non-compliance by the visa holder known to the Minister;
·     the time that has elapsed since the non-compliance;
·     any breaches of the law since the non-compliance and the seriousness of those breaches; and
·     any contribution made by the holder to the community.
The Tribunal has duly considered the applicant’s response to the NOICC submitted on 14 September 2017. For the reasons previously outlined, the Tribunal does not accept that the applicant is the innocent party of agent wrongdoing, nor does it accept that he satisfied the criteria for the Student visa when it was granted, as contended in his response to the NOICC. In considering the prescribed circumstances and relevant policy matters pertaining to the exercise of discretion in this review, the Tribunal has carefully reviewed the applicant’s response to the NOICC, in addition to the balance of the material before it including his response to the first s.359A invitation.
The correct information in relation to whether the applicant completed his secondary schooling in Nigeria in 2010, with the information particularised in the WAEC West African Senior School Certificate dated December 2010 with Certificate Number 210101, is that he did not. The contents of that document are not genuine and it is a bogus document. On balance, the Tribunal is prepared to accept that the applicant completed his secondary schooling in Nigeria in 2002, in accordance with the information contained in the West African Senior School Certificate dated December 2002 with Certificate Number 2570969, and that the content of this document is genuine. Following careful consideration, the Tribunal considers that the aforementioned matters weigh strongly in favour of cancelling the applicant’s Subclass 500 visa. This is because he has caused a bogus document to be provided to the Department which contains more favourable academic results in order to improve his prospects of obtaining the visa. Further, the provision of the bogus document constitutes an attempt to undermine the integrity of Australia’s visa system and the Student visa program, which is a most serious matter in the view of the Tribunal.
The Tribunal forms the view that the decisions regarding the applicant being granted a Subclass 500 visa and being immigration cleared were based partly on incorrect information contained in the bogus document. That is because the applicant was granted his visa by Officer A, who accepted the incorrect information contained in the WAEC West African Senior School Certificate dated December 2010 with Certificate Number 210101. Further, the applicant was subsequently immigration cleared on the basis of holding the Student visa, which should only have been granted following careful assessment in accordance with the established Departmental procedures pertaining to Nigerian Student visa applicants which included verification of his secondary schooling. The Tribunal also places high weight upon the Departmental Subject Matter Expert audit of the applicant’s Student visa application, for reasons previously outlined, and accepts its conclusion that the applicant’s Genuine Temporary Entrant statement and sponsor letter were similarly worded to those submitted by others granted Student visas by Departmental Officers suspected of granting visas fraudulently. Therefore, in the view of the Tribunal, the aforementioned documents contain false information which in part contributed to the applicant being granted a Student visa and being immigration cleared. On balance, the Tribunal considers that the decisions regarding the applicant being granted a Subclass 500 visa and being immigration cleared were based partly on incorrect information and these circumstances weigh strongly in favour of cancelling his Subclass 500 visa.
As previously outlined, the Tribunal finds that the applicant knowingly caused the bogus School Certificate to be provided to the Department in connection with his Student visa application, which was approved by Officer A. The Tribunal considers that the circumstances in which the non-compliance occurred weigh strongly in favour of cancelling the applicant’s Subclass 500 visa.

The applicant submits that his present circumstances weigh against the cancellation of his visa. As outlined above, the applicant submitted documents in support of his contention that he meets the criteria for the grant of the Student visa such as identity documents (for the applicant and financial sponsor), financial records, a statement from the financial sponsor, an English language test result, confirmation of health insurance coverage, a WAEC West African Senior School Certificate dated December 2002 with Certificate Number 2570969, a currency exchange conversion calculation and confirmations of enrolment (COE). The applicant maintains that he was genuinely studying up until the time his visa was cancelled and he has the intention to continue his studies, however he has not committed ‘money, effort and time’ to resume these studies until the outcome of the review is known. He maintains that he has abided by all visa conditions in Australia.
The Tribunal does not accept that the applicant is presently a genuine temporary entrant for study in Australia for the following reasons. When the investigative reports are considered globally, it is apparent that the applicant was considered a ‘high risk’ Student visa applicant due to his Nigerian nationality and accordingly his visa application should have been processed with the additional scrutiny outlined in the document ‘Student visa Assessment methodology’, by a Departmental Officer (including LES) with formal authority to do so in accordance with the established procedures outlined in the investigative reports. Given their official source and content, the Tribunal accepts the conclusions reached in the investigative reports (placing high weight upon them) that Officer A lacked the formal authority to process the applicant’s Student visa application and received corrupt payments. It is worth pausing to reflect that Officer A did not dispute that she lacked formal authority to process the visas in the cohort examined in the investigative reports.
The Departmental Subject Matter Expert audit of the applicant’s Student visa application revealed that, at the time the visa was granted on 15 December 2016, the application was deficient in several respects including that he did not satisfy cl.500.212 (the Genuine Temporary Entrant requirement) as his submitted Genuine Temporary Entrant statement, sponsor letter and ‘The West African Examinations Council (WAEC) West African Senior School Certificate’ were similarly worded to those submitted by others granted Student visas by Departmental Officers suspected of granting visas fraudulently. Additionally, the Departmental Subject Matter Expert was not satisfied that the applicant had an employment related incentive to return to Nigeria. The Tribunal places high weight upon the Subject Matter Expert audit given its official source and content. Accordingly, the Tribunal is satisfied that the applicant’s Student visa application was lacking the particulars ordinarily required in accordance with established Departmental procedures at the time his visa was granted by Officer A, who acted without formal authority to do so.
Whilst the Tribunal accepts the applicant did undertake some limited study whilst in Australia, given the background to the grant of the visa outlined above, it does not accept the material submitted by him in support of his contention that he meets the criteria for the grant of the Student visa points to him presently being a genuine temporary entrant for study in Australia. The aforementioned conclusion is buttressed by the material he submitted indicating he has not committed ‘money, effort and time’ to resume his studies until the outcome of the review is known, noting that a significant period has elapsed since he last studied in Australia. Following careful consideration, the Tribunal forms the view that the applicant remains in Australia without a genuine intention to resume his studies. On balance, the Tribunal considers that the present circumstances of the applicant weigh strongly in favour of cancelling his Subclass 500 visa. For the sake of completeness, the Tribunal notes that its consideration of matters of potential hardship, as relevant to the applicant’s present circumstances, is recorded below.
The Tribunal has carefully considered the subsequent behaviour of the applicant concerning his obligations under Subdivision C of Division 3 of Part 2 of the Act and notes there are no matters of concern on the evidence before it. Further, it has also carefully considered if there are any other instances of non-compliance by the visa holder known to the Minister and finds there are not. The aforementioned circumstances weigh slightly against cancellation of the applicant’s Subclass 500 visa.
The bogus document was provided to the Department on 10 December 2016. Accordingly, approximately two years and nine months have elapsed since the applicant’s non-compliance with s.103 of the Act. Following careful consideration, the Tribunal finds that the aforementioned passage of time weighs slightly against cancelling the applicant’s Subclass 500 visa. There is no evidence of any breaches of the law since the applicant’s non-compliance and the Tribunal considers that this prescribed circumstance weighs slightly against cancellation of the visa.
The applicant contends that he has made a contribution to the community by way of studying an Individual Support course which benefitted ‘the elderly and disabled.’ Whilst the Tribunal is prepared to accept that some such benefit has been made by the applicant, the weight afforded to this contribution is restricted by the very limited period of time in which it was made as a student and also by the applicant’s non-completion of these studies. Following careful consideration, the Tribunal considers that the applicant’s contribution to the community weighs slightly against the cancellation of his Subclass 500 visa.
While the circumstances above must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual - PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
The Tribunal has considered whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention. If the applicant’s Subclass 500 visa is cancelled he will become an unlawful non-citizen and liable to detention under s.189 of the Act and removal under s.198 of the Act. He may also be subject to s.48 of the Act which limits further specific visa applications by a person who does not hold a substantive visa and who has had a visa cancelled since they last entered the migration zone. There is no evidence before the Tribunal to suggest that the applicant would be subject to indefinite detention and be unable to be removed to Nigeria. In the circumstances of the present review, the aforementioned matters weigh neither in favour of, nor against, cancellation of the applicant’s Subclass 500 visa as they are the intended consequences of the legislation.
There is no evidence before the Tribunal suggestive of any consequential visa cancellations pursuant to s.140 of the Act if the applicant’s Subclass 500 visa is cancelled. Accordingly, this consideration weighs neither in favour of, nor against, cancellation of his visa. There is no evidence before the Tribunal suggesting that any international obligations would be breached as a result of the cancellation of the applicant’s Subclass 500 visa, such as non-refoulement obligations, family unity principles or the obligation to consider the best interests of the child. Accordingly, this consideration weighs neither in favour of, nor against, cancellation of his visa.
The Tribunal has considered all other relevant matters, including the degree of hardship that may be caused to the applicant and his family members if his Subclass 500 visa is cancelled. The applicant contends that he will face hardship if his Student visa is cancelled because he and his family have invested considerable funds for him to study in Australia, he will face considerable shame if he returns to Nigeria without completing his studies, he will be denied the opportunity for further study in this country and he will likely be unable to return to Australia.
The Tribunal accepts that if the applicant’s Student visa is cancelled he will lose the opportunity to study in this country in the short term however, given that it does not accept he presently is a genuine temporary entrant for study in Australia, the loss of that opportunity does not pose any significant hardship to him. The Tribunal does accept that the financial loss of the applicant and his family, his shame and upset at returning to Nigeria without completion of Australian studies (along with that of his family) and the limitations upon the applicant returning to Australia if his visa is cancelled, weigh against the cancellation of his Student visa. In the view of the Tribunal, the aforementioned circumstances of hardship weigh moderately against the cancellation of the applicant’s Subclass 500 visa. The Tribunal has also carefully considered all relevant circumstances pertaining to the applicant’s case and does not consider there are any other relevant matters weighing either in favour of, or against, cancellation of his visa.
CONCLUSION
For reasons previously outlined, the Tribunal does not accept the applicant was an innocent victim of agent conduct, rather it finds that he knowingly caused a bogus document to be provided to the Department in connection with his Student visa application. In doing so, there was non-compliance with s.103 of the Act by the applicant in the way described in the s.107 notice. Accordingly, the Tribunal has considered in detail the circumstances relevant to whether the visa should be cancelled pursuant to s.109(1).
The Tribunal has carefully reflected upon the circumstances both against, and in favour of, cancelling the applicant’s Subclass 500 visa. On balance, following much consideration of the applicant’s claims individually and cumulatively, the Tribunal finds that the circumstances in favour of cancelling the applicant’s visa outweigh those circumstances to the contrary.
Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should be cancelled.
DECISION
The Tribunal affirms the decision to cancel the applicant’s Subclass 500 (Student) visa.
K. Chapman
Member
ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)      purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)      giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e) informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)      in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)      visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)      deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2019] AATA 4101

2 September 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice