Warinda (Migration)
[2023] AATA 4611
•8 November 2023
Warinda (Migration) [2023] AATA 4611 (8 November 2023)
DECISION RECORD
DIVISION: Migration & Refugee Division
APPLICANT: Mr Joseph Odhiambo Warinda
REPRESENTATIVE: Mr Richard Daniel Shakenovsky
CASE NUMBER: 2213122
HOME AFFAIRS REFERENCE(S): BCC2021/1787539
MEMBER: Michael Bradford
DATE AND TIME OF
ORAL DECISION AND REASONS: 8 November 2023 at 3:28 pm (NSW time)
DATE OF WRITTEN RECORD: 30 January 2024
PLACE OF DECISION: Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision, pursuant to Section 349(2)(d) of the Migration Act 1958, that the Visa Application filed on 15 September 2021 is invalid and of no effect.
Statement made on 30 January 2024 at 11:10am
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) visa – Subclass 500 (Student) – bogus document – bank statement – reasonable grounds to believe the document was genuine – invalid visa application – decision under review substituted
LEGISLATION
Migration Act 1958 (Cth), ss 65, 349
Migration Regulations 1994 (Cth), Schedule 2, cl 500.217; Schedule 4, PIC 4020
CASES
SZANA v MIMIA [2004] FCA 203
APPLICATION FOR REVIEW
Introduction
This is an application to review a decision made by a delegate of the Minister for Home Affairs who, on 22 August 2022, refused to grant to the applicant a Student (Temporary) (Class TU) visa under section 65 of the Migration Act 1958 (Cth) (the Act). The applicant applied for the visa on 15 September 2021.
At the video hearing on 8 November 2023, I made an oral decision to set aside the delegate’s decision and to substitute for it a decision pursuant to Sec 349(2)(d) of the Act that the Visa Application filed on behalf of the applicant on 15 September 2021 (the VA) was invalid and of no effect. I also gave oral reasons for it at that time.
On 11 December 2023 the Minister requested a written record of those reasons.
What follows is that record.
STATEMENT OF DECISION AND REASONS
Background, the process which led to the refusal decision, my overall approach to certain aspects arising in the review.
The delegate refused to grant the visa on the ground that the applicant did not satisfy clause
500.217 of Schedule 2 to the Migration Regulations 1994 because he did not meet PIC 4020(1). The basis for this finding was that he had given or caused to be given to the delegate a bogus document in support of the VA, this being a statement from the Co- operative Bank in Kenya dated 29 September 2021 issued for an account which was said to have been operated by a relative of his, one Ambrose Tuygong (Tuygong), during the period from 1 July 2021 to 29 September of that year (the Co-Operative Bank statement).
The applicant did not dispute in his dealings with the delegate that the Co-Operative Bank statement was bogus. In his signed response letter dated 13 May 2022 he implicitly (if not explicitly) accepted that it was a fake document, focusing his attention on the aspect of whether he had any reason to suspect that it was fake. Although he attempted in his oral evidence to distance himself from that position, I am quite unable to accept the proposition, somewhat faintly put at the hearing, that the document may have been genuine. In my view, the implicit admissions made in his response letter regarding this aspect are more reliable and, in any event, he has led no other evidence on the review to substantiate the proposition that the document is authentic.
To the extent to which it might be said that the applicant has shifted ground in relation to the issue of whether the Co-Operative Bank statement is a bogus document, I do not consider this to have any broader implications to the overall merits of his review case, nor do I consider that it undermines his general credibility. It is not uncommon for an applicant in these cases to shift positions and advance conflicting arguments in the mistaken belief they are better off doing so. Very often these are strategic decisions which are made by an applicant on advice, or because of information they receive from a third party.
In any event, having had a reasonably good opportunity to assess the applicant during his oral evidence given via video from Kenya over a period of about 1 hour and 20 minutes, I am prepared to accept what he has said regarding his belief at the relevant times and, more particularly, that he had no reason to suspect that the Co-Operative Bank statement was anything other than a genuine document.
Put shortly, the main reasons for my acceptance of his oral evidence are, firstly, because it is supported by at least some of the objective circumstances and, secondly, because there is no other convincing evidence on which I could find that he was complicit in, or indifferent to, the fraud.
In this case there are, it seems to me, no circumstances which should have altered him to the possibility that the document was bogus at any time prior to his receipt of the invitation to comment on the authenticity of the document in question. Indeed, most of the circumstances tend to indicate that he had reasonable grounds on which to believe that the document was genuine.
I remind myself that in these cases a finding that an applicant was complicit in or indifferent to fraud is not to made lightly. These are serious findings which should not be made unless there is convincing evidence which points the Tribunal in that direction.
The issues arising in the review.
In this case it has been accepted, correctly in my view, that there is no factual basis for any waiver under PIC 4020(4).
This being so, it seems to me that there are four issues arising for consideration in this case. The first is whether the applicant meets PIC 4020(1), as is required by clause 500.217. As is well known, this provision relevantly requires that there be no evidence that the applicant has given or caused to be given to the Minister a bogus document in relation to the VA. The second is whether the applicant can be said to have been complicit in, or otherwise indifferent to, the fraud; thirdly, if he is innocent of any wrongdoing, what significance this has to the eventual outcome of the case; and, lastly, what is the appropriate relief which the Tribunal should grant in these circumstances.
As already mentioned, a “bogus document” is defined in Sec 5(1) of the Act as having various meanings. Relevantly it is a document which purports to have been, but was not, issued in respect of a person, or is counterfeit, or has been altered by a person who does not have authority to alter it.
It seems to me to be beyond argument that the Co-Operative Bank statement is a bogus document. There was, according to the delegate’s invitation to comment, information available from reliable sources to this effect on which he could, and did, form a reasonable suspicion that it was such a document.
I have no reason in this case on which to doubt the veracity of that information. I am fortified in this conclusion by the implicit admissions contained in the applicant’s response. Nor do I have any difficulty in finding, on the evidence which I have heard today, and which I have otherwise read in the Department’s file, that the document in question was fabricated by Tuygong.
A central question which I have to address is whether the applicant was complicit in some way in the commission of this fraud or whether he was otherwise indifferent to it.
Evidence and findings
The applicant appeared today at the video hearing to give oral evidence in support of his case. He gave his evidence in English. I did not readily comprehend all of his oral evidence because of linguistic difficulties but it did not have a broader significance. He was mostly a responsive witness who gave me the impression that he has a good understanding of spoken English. I have no reason to doubt that he has a reasonably good understanding of
written English. His response letter suggests as much. He told me that his former agent drafted the letter, and this may well be so, but he voluntarily signed it, apparently.
He confirmed in his oral evidence that when he contacted Tuygong after the delegate had invited him to comment on the allegation that the Co-Operative Bank statement was bogus, Tuygong denied that it was fake. Although I have no reason to doubt the applicant’s evidence about this, a denial that it was fake does not prove it was authentic.
He also gave me some evidence regarding the circumstances in which, to his knowledge, the sponsorship evidence from Tuygong was obtained.
The applicant said that he made initial contact with Tuygong on the telephone and asked him to provide financial information in the form of an affidavit, no doubt having got advice from his agent to this effect. He told me, and I accept, that he instructed his former agent in Kenya, a Ms Njomo, to send a draft affidavit directly to Tuygong for this purpose.
Tuygong then apparently arranged for the Co-Operative Bank statement to be procured, a copy of which he attached to his affidavit before swearing it and returning it to the applicant. Why he returned it to the applicant rather than Ms Njomo I do not know but I accept the applicant’s evidence that this is in fact what occurred. He said that he looked at it before calling Tuygong to thank him for his assistance. He said, and I accept, that nothing occurred in these exchanges to cause him to question whether Tuygong had the funds referred to in the Co-Operative Bank statement, or to think that it was anything but an authentic record from that Bank.
The applicant also explained to me that at or about the same time, on or about 2 October 2021, he forwarded the affidavit from Tuygong and other documents to Ms Njomo for submission to the delegate.
Although there may have been another person involved in this process, whom the applicant identified during his evidence, her involvement does not appear to me to put a different complexion on the circumstances in which the Co-Operative Bank statement was obtained. I am satisfied that what the applicant received from Tuygong was sent by him to Ms Njomo who then provided the sponsorship evidence to the delegate.
It is, I think, necessary to bear in mind that all of this was done quickly because the VA had been filed sometime earlier, on 15 September 2021. I am satisfied that Ms Njomo prepared that application because her details appear on the front page of the VA. On the date it was filed, 15 September, she also sent an email to the Department explaining that the applicant was waiting for financial documents to be sent from Kenya and that once received she would provide them to the Department to support the VA. In the email she explained there had been delay in the provision of the sponsorship material because of COVID and requested the Department to be patient as she waited for this and other documents to arrive.
The Tuygong affidavit is dated 2 October 2021, some 2 weeks after that email was sent. It thus appears to me that these steps were most probably taken in a rush to ensure that the VA was supported in a more or less timely manner. Whether this explains why Tuygong fabricated the document, I do not know.
That said, I do think nonetheless that the urgency would have compromised the applicant’s ability to verify the information which Tuygong had provided. The applicant does appear to me to have had only a very limited opportunity to examine the supporting documents before he sent them on to his former agent.
Moreover, there is nothing on the face of the Co-Operative Bank statement which could reasonably have alerted the applicant to the possibility that it was a fake document. Indeed, it appears to be in a not dissimilar form to the other Co-operative Bank statements which were attached to the applicant’s other sponsorship evidence provided to the delegate in support of his response to the invitation to comment. There are some relatively minor differences, that much is true, but these, in my view, were unlikely to have been noticed on a quick reading of the material, if that in fact is what the applicant did.
Bearing in mind that these other documents were made available to him prior to the lodgement of the VA, I am prepared to accept the applicant’s oral evidence to the effect that he honestly and reasonably believed that the Co-Operative Bank statement, a copy of which was attached to the Tuygong affidavit, was an authentic document.
The applicant also told me that when he received the Tuygong affidavit he contacted him on the telephone and was assured that Tuygong had the necessary funds in his Co-Operative Bank account. This conversation, as I understand it, took place prior to the provision of the material to Ms Njomo.
I have no reason in this case not to accept this evidence, evidence which suggests to me that nothing transpired in these conversations with Tuygong to put the applicant on enquiry that something was amiss.
He also told me, and I accept, that Ms Njomo had told him that he needed to organise all of this quickly because the VA had already been filed. I have no reason not to accept this evidence, it is consistent with the objective features.
For those reasons I am prepared to accept that the document attached to Tuygong’s affidavit is a bogus document but that it was procured by him acting alone, and without the applicant’s knowledge or consent.
I cannot explain why Tuygong went down that path. But there is no evidence before me to indicate that the applicant knew what he was doing or had any reason to suspect what he had done. He was involved in the process of obtaining the sponsorship evidence, that much is clear, but there is no evidence that he was complicit in or indifferent to the fraud. As far as I can tell, he acted as a mere conduit in the provision of the offending information to his former agent.
What occurred between the applicant and Tuygong in this case has all the appearances of a regular arrangement between members of a family who, understandably enough, wanted to assist each other. They are related by blood and were obviously on good terms at the time. It would be very unusual if arrangements of this kind were made without some internal communication between them but, in my view, nothing occurred during these exchanges to suggest that the applicant knew what Tuygong had done, or which should have given him any reason to suspect what he had in mind.
In circumstances where the applicant had an apparently reputable agent acting for him in connection with the VA, and where he had other acceptable sponsors whose evidence was not in question, it is very hard for me to see why the applicant would have knowingly acquiesced in the provision of fraudulent information.
I am satisfied that he was not complicit in the fraud, nor was he indifferent to it in any relevant sense.
This is a very significant ameliorating factor which, in my view, puts a very different complexion on the issue of whether the applicant has failed to meet PIC 4020(1).
Summary and conclusion
It thus seems to me that the preferable decision in this case is to set aside the delegate’s refusal and to substitute for it a decision, pursuant to Sec 349(2)(d) of the Act, that the VA is invalid and of no effect, and should not have been considered by the delegate; see for example SZANA v MIMIA [2004] FCA 203, where at [26] the court agreed with the reasoning of Allsop J (as he then was) at first instance that this was an appropriate course in that case; see [2003] FCA 1407.
As discussed with Mr Shakenovsky at the hearing, it seems to me that a necessary consequence of invalidating the VA is that the refusal decision must go and that it would be, in these circumstances, open to the applicant to lodge a fresh visa application for consideration by the delegate.
If the applicant does so, the application will then be a matter for the delegate to determine based on the evidence which the applicant provides to support it.
DECISION
As is recorded in the Outcome document sent to the parties on 8 November 2023, the decision of the Tribunal is that the decision under review is set aside and a decision substituted, pursuant to Sec 349(2)(d) of the Act, that the Visa Application filed on 15 September 2021 is invalid and of no effect.
Michael Bradford Member
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