Ezeafurukwe (Migration) - [2019] AATA 5041

Ezeafurukwe (Migration) [2019] AATA 5041 (13 November 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Adaku Faith Ezeafurukwe
Mr Marius Ezeafurukwe
CASE NUMBER:  1725260
HOME AFFAIRS REFERENCE:                BCC2017/2969538
MEMBER:Rosa Gagliardi
DATE:13 November 2019
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 560 (Student) visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 13 November 2019 at 5:31pm

CATCHWORDS
MIGRATION – cancellation – Student (Temporary) (Class TU) visa – Subclass 560 (Student) – fraudulent conduct by any person – Departmental officer in South Africa may have acted improperly by not checking applicant’s employment details and bank statements – visa granted within days – no evidence of connection between officer’s conduct and grant of visa – no evidence of fraudulent conduct by applicants – consideration of employment and finances – “fraudulent conduct” – “reasonably suspects” – decision under review set aside with regard to the first applicant, no jurisdiction with regard to the second applicant
LEGISLATION
Migration Act 1959 (Cth), ss 116(1)(g), 140(1), 348, 359AA, 376
Migration Regulations 1994 (Cth), r 2.43(1)(o)

CASES
Briginshaw v Briginshaw (1938) 60 CLR 336
Mbelu [2018] AATA 3174
Odinkaeze [2018] AATA 1295

Patel v Minister for Immigration and Border Protection [2016] FCA 165
Rani v MIMA (1997) 80 FCR 379
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tien v MIMA (1998) 89 FCR 80

Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 12 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 560 (Student) visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on 12 October 2017 on the basis that the applicant had enlivened regulation 2.43(1)(o) because the delegate reasonably suspected that the visa had been “obtained as a result of the fraudulent conduct of any person”. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
For the purposes of the Tribunal’s jurisdiction under s.348 of the Act, the only decision that is before the Tribunal is the decision with respect to the first named applicant. The second named applicant’s visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act which made the cancellation of the second named applicant’s visa self-executing on the cancellation of the first named applicant’s visa: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] AATA 5041
Decision Date: 13 November 2019

CaseChat Overview and Summary

This matter concerned the cancellation of a Student (Temporary) (Class TU) visa, subclass 500, held by Ms Adaku Faith Ezeafurukwe and, consequentially, her husband Mr Marius Ezeafurukwe. The Departmental delegate cancelled the visas on the basis that they were obtained as a result of fraudulent conduct, specifically alleging that a Departmental officer in the Australian High Commission in Pretoria may have acted improperly by not adequately verifying Ms Ezeafurukwe’s employment and financial details, leading to the visa being granted within days. The applicants contended that they had not engaged in any fraudulent conduct.

The Tribunal was required to determine whether the visa was granted as a direct result of fraudulent conduct by any person, and whether a causal connection existed between any alleged fraudulent conduct and the grant of Ms Ezeafurukwe’s visa. This involved considering the meaning of "fraudulent conduct" and the threshold of "reasonably suspects" as required by Regulation 2.43(1)(o) of the Migration Act 1958 (Cth). The Tribunal also had to assess whether, applying the "but for" test, the visa would not have been granted had the alleged fraudulent conduct not occurred.

The Tribunal reasoned that while there were suspicions regarding the conduct of a Departmental officer in Pretoria and the expeditious processing of Ms Ezeafurukwe’s application, there was insufficient probative evidence to establish a direct causal link between any fraudulent conduct and the grant of her visa. The Tribunal noted that the investigation reports did not implicate Ms Ezeafurukwe or her husband in deliberate fraudulent participation, and that a lack of verification of employment and education documents, or the application being processed through a shared IP address, were not, in themselves, sufficient to prove that the visa was granted as a direct result of fraud. Applying the principles from *Odinkaeze*, the Tribunal concluded that the grounds for cancellation did not arise if it could not be shown that the visa would not have been granted but for the alleged fraudulent conduct.

Consequently, the Tribunal set aside the decision to cancel Ms Ezeafurukwe’s visa. However, regarding Mr Ezeafurukwe, the Tribunal found it had no jurisdiction to consider his matter.

Orders

Orders of the court

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Background

Background to the litigation

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.Background The first-named visa holder, Ms Adaku Faith Ezeafurukwe, is a 30 year old national of Nigeria (Imo State) married to the second-named visa holder, Mr Marius Ezeafurukwe. Ms Ezeafurukwe made an application for a Class TU Subclass 500 Student – Vocational Education visa on 1 December 2016 to study a Diploma of Leadership and Management at the Australian Academy of Commerce, Sydney, NSW. This was then to be followed by an Advanced Diploma of Leadership and Management from 9 April 2019 to 4 April 2021. Ms Ezeafurukwe was granted her Student visa subclass 500 on 6 December 2016 and she arrived in Australia on 7 December 2016. Since her arrival Ms Ezeafurukwe and Mr Marius Ezeafurukwe have had a child in Australia. Alerts were raised in respect of Ms Ezeafurukwe’s student visa application by the Departmental investigations leading to the grant of Ms Ezeafurukwe’s and her dependent spouse’s Student visas. It was found by the delegate that a Departmental officer in the Australian High Commission in Pretoria may have acted improperly to grant the visas and it appeared that the visas were granted as a result of suspected fraudulent conduct. Accordingly, Ms Ezeafurukwe’s visa was cancelled and that of her husband’s was also cancelled consequentially under section 140 of the Act. At hearing Ms Ezeafurukwe gave evidence that her spouse’s brother, Mr Henry Ezeafurukwe had supported and sponsored her to study in Australia because she had wanted to advance her education to be able to return to her family business in Nigeria, owned by her father, to assist the business grow. Mr Henry Ezeafurukwe was motivated to assist her with her goals to study, because her husband (Mr Henry Ezeafurukwe’s brother) had played a part in helping Mr Henry Ezeafurukwe’s business in Nigeria. Ms Ezeafurukwe stated that her brother-in-law, Mr Henry Ezeafurukwe, had a connection in Australia named Mr Timothy Ohaegbulam to assist her with the application. Mr Timothy Ohaegbulam was not an Australian citizen but was merely studying here and he gave advice about which colleges were suitable and how she might go about applying for her student visa. The applicant herself never had any contact with the Australian High Commission in Pretoria and nor did Mr Timothy Ohaegbulam. When asked Ms Ezeafurukwe emphasised that she had never paid Mr Timothy Ohaegbulam who was a family friend for his assistance and she certainly had not paid anyone in Pretoria for her visa. The Tribunal noted the rapidity with which the visa was granted to her; that is within a number of days. Ms Ezeafurukwe stated that she did not question the rapidity with which the visa was granted because she knew that Australia was an efficient country and it was all done online. The Tribunal put to Ms Ezeafurukwe that there were concerns because her visa was handled by an officer who was alleged to have acted corruptly within the Department because, among other things, the officer involved did not “attempt to check the veracity of the employment claims” made by her. There were also concerns that the business she worked for did not have an online presence and that the name of the company “Innomate” was misspelt.

Evidence

Evidence Before The Court

Mr Henry Ezeafurukwe, Ms Ezeafurukwe’s brother-in-law and sponsor, gave consistent evidence about, among other things, Timothy, and his role in providing her with assistance with her application as a family friend. Evidence and reasoning for the cancellation by the delegate On 1 December 2016, Ms Ezeafurukwe applied for a class TU subclass 500 Student visa electronically via the department’s online processing system. Ms Ezeafurukwe was granted the Student visa on 6 December 2016 by the Department’s post in Pretoria, South Africa. Departmental records indicate that Ms Ezeafurukwe arrived in Australia as the holder of this Student visa on 7 December 2016. The Department conducted an investigation in the circumstances leading to the grant of Ms Ezeafurukwe’s visa which revealed a Departmental officer may have acted improperly in the grant of the visa. Therefore, it was concluded that the visa was granted as a result of reasonably suspected fraudulent conduct and the delegate was satisfied that a ground existed for cancellation of the Student visa under section 116(1)(g) of the Act as a prescribed ground applied to Ms Ezeafurukwe under Reg. 2.43(1)(o). The Tribunal is unable to provide the detailed nature of the fraud conducted by an immigration official/s in the Australian High Commission in Pretoria, partly because it has not been provided with the entirety of the investigative reports, and partly because of the restrictions imposed upon by the Tribunal by the s.376 Certificate of the Migration Act. In any event, the delegate relied upon a number of reports in relation to an investigation undertaken by the Department about alleged misconduct by such officials. It should be noted that neither Ms Ezeafurukwe nor her husband are referred to in these reports as having deliberately and knowingly participated in any fraud in terms of paying bribes for visas. No causal connection has been established with information about bank accounts, that Ms Ezeafurukwe was only granted a visa because of any such illegal conduct by her or her relatives. According to a document provided to the Tribunal “Visa Cancellation referral Report” dated 10 August 2017 from Australia Border Force, the Department identified a link between offshore nationals engaging in criminal activity and visas granted by a Departmental officer working at the Australian High Commission in Pretoria. (Incidentally, in the interests of natural justice, the Tribunal made available to Ms Ezeafurukwe, a heavily redacted copy of the Visa Cancellation Referral Report and the Investigation Report LES Misconduct). This led to a joint investigation with the Australian Commission for Law Enforcement Integrity (ACLEI). Again, the Tribunal has found little evidence in these reports that would link Ms Ezeafurukwe and her husband having participated in fraudulent conduct together with the relevant Departmental officer. Some of the allegations involved officials possibly knowingly granting visa for personal financial gain. The features of this caseload, including that of the applicant which attracted suspicion, involves cases being decided expeditiously without the required scrutiny and verification. Specifically, the alleged conduct by the officials in the Australian High Commission in Pretoria involved Departmental officers ‘bypassing’ the mandatory allocation of that grant of visas to Nigerian applicants, who were identified as high risk on the basis of their nationality, and without following the ‘otherwise rigorous assessment’ process that would have been applied to Nigerian applicants as part of the Department’s risk profiling. The processes involved more in depth assessments which included a direction to ‘check employment and education documents for any evidence of fraud’ as specified in ‘Student Visa Assessment Methodology’, attached to the Visa Cancellation Referral Report. It is alleged that funds were paid to these Departmental officers by third parties who were associated with Nigerian students at the Australian colleges referred to in the report.

Decision

Reasons for decision

Regulation 2.43(1)(o) requires the decision-maker to reasonably suspect that the visa was obtained as a result of fraudulent conduct, suggesting a causal connection is required and needs to be established. The task before the Tribunal, therefore, is not whether an officer acted inappropriately in relation to a host of visa applications, but whether Ms Ezeafurukwe’s visa specifically was granted as a direct result of fraudulent conduct by any person.The ‘but for’ test and the decision in Odinkaeze The Tribunal notes at the outset that there is limited evidence probative evidence to explain why the delegate had a reasonable suspicion that fraudulent conduct had occurred with respect to the grant of Ms Ezeafurukwe’s visa. There are the overall vague reasons that: her application was dealt with hurriedly; that her documentation had not been verified; that there was little evidence about the workplace where she claimed to have worked (Innomate) and that the spelling of the company suggested it was a fraudulent business and did not exist; and that her application had been sent through the same IP address as other applications which have been the subject of cancellation proceedings due to the alleged misconduct of Departmental officer/s. The question for the Tribunal, as per Odinkaeze, is whether there is evidence that the visa would not have been granted but for the fraud.[5][5] Deputy President and Division Head Jan Redfern and Dr Colin Huntly, 17 May 2018, This approach was expounded in another decision of the Tribunal in Mbelu (Decision: 1725196):In Odinkaeze the Tribunal was not satisfied there was sufficient evidence to found a reasonable suspicion that the applicant’s visa was obtained as a result of the fraud of the allegedly corrupt Departmental officer. While there was evidence of the fraudulent conduct by the Departmental officer in respect of the grant of student visas to Nigerian nationals more generally, the Tribunal was not satisfied on the basis of the evidence that there was a link between the fraudulent conduct as described more generally in the Investigation Reports LES Misconduct and the granting of the visa of Ms Odinkaeze. The ‘but for’ approach indicates that the grounds for cancellation do not arise if it cannot be shown through probative evidence that the visa was granted as a direct result of fraudulent conduct by anybody. Departmental policy PAM3 also provides that “[I]t is not enough to reasonably suspect that there was fraudulent conduct by a person-the delegate must 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”. The Tribunal has, therefore, examined whether Ms Ezeafurukwe’s visa been processed by an officer who was not tainted with maladministration, she would have been granted the visa on the basis of the information provided by her regarding her education and work experience. Whether a lack of verification of employment and education is enough to make a factual finding that the visa was granted to Ms Ezeafurukwe as a result of fraudulent conduct is questionable. Similarly, it is questionable to suggest that because Ms Ezeafurukwe’s application was sent through the same IP address as other applications that have come under suspicion, her visa was granted as a result of fraudulent conduct. The decision in Odinkaeze states:Information that a Departmental Officer did not verify employment or educational records would not be sufficient if there is evidence to suggest those are records are genuine and can be verified. If the records are genuine and the application has been processed in accordance with the Student visa methodology, her application would have been granted.

Ratio Decidendi

Legal Principle Established

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