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

1. 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).

2. 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.

3. 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 jurisdiction with respect to the second named applicant.

4. The visa holders appeared before the Tribunal on 19 August 2019 to give evidence and present arguments. The Tribunal also received oral evidence from Mr Henry Ezeafurukwe, who is the brother of the second-named visa holder, Mr Marius Ezeafurukwe.  The Tribunal hearing was conducted with the assistance of an interpreter in the Igbo and English languages.

5. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Background

7. 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.

8. Since her arrival Ms Ezeafurukwe and Mr Marius Ezeafurukwe have had a child in Australia.

9. 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.

10. 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.

11. 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. 

12. 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. 

13. The Tribunal also noted that the Department had concerns that Ms Ezeafurukwe could have studied her chosen course in Australia in South Africa and Nigeria, to which her migration agent responded that he was unaware that just because a course was available in-country did not mean that potential students could not travel abroad in a Western country.  In Nigeria foreign degrees were particularly prized.

14. Ms Ezeafurukwe described in detail her role in her father’s business which was managing a retail arm of the enterprise.  The business was retail and distribution of cosmetic products and other bathroom necessities.

15. The Tribunal also put to Ms Ezeafurukwe under section 359AA of the Migration Act that it appeared that other verifications in terms of bank statements were not undertaken thoroughly by the officer allegedly acting corruptly within the employ of the Department. The migration agent argued that even if this were the case, no causal connection had been established between the officer’s conduct and the grant of the visa to Ms Ezeafurukwe.

16. Further information put to Ms Ezeafurukwe under s.359AA of the Act was that Departmental investigations revealed that Ms Ezeafurukwe’s application went through the same IP address as did several other applications from Nigerian nationals that were the subject of concern in terms of how they came to be granted. Ms Ezeafurukwe stated that Mr Timothy Ohaegbulam submitted the application online for her but she did not believe for a moment that Mr Ohaegbulam had done anything wrong or had attempted to defraud the Department on her behalf. The migration agent stated that given the closeness of the Nigerian community here it was not incongruent that the applications may have been sent through a common IP address, regardless of whether the applicants were genuine temporary entrants or not.

17. In terms of the progress in her studies, Ms Ezeafurukwe submitted that she had been going well but ever since the cancellation everything was a big challenge for her.  Her husband had been placed in immigration detention and he was still displaying symptoms of trauma as a result.  She also had a young child to look after.  The reason Ms Ezeafurukwe had not been taken into detention was because she was pregnant at the time and she had evidence that because of the stress she endured a difficult pregnancy and there were concerns for the well-being of her child.

18. Mr Marius Ezeafurukwe also gave evidence.  He confirmed that his wife had submitted her application online through Timothy, their connection in Australia, who is a friend of his brother, Henry.  He stated that Timothy did not have any financial incentive to assist them with the application; he was simply a family friend.

19. 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

20. 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.

21. 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).

22. 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.

23. 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).

24. 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.

25. 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.

26. Ms Ezeafurukwe’s application is one of a group of Nigerian student applications processed in a period in 2017 that were identified by the Department as being fraudulently processed because they had been processed by the Departmental officer subject of misconduct allegations, and had been allocated outside the usual Department case management system.  Other deficiencies identified include that the visas were unusually rapidly processed, that is between 2 and 13 days.  Ms Ezeafurukwe’s visa was processed within this timeframe, although the Tribunal does not have any information before it to indicate the degree to which her visa was processed outside the ‘normal’ processing times, and indeed the Tribunal is not aware as to what such normal timeframes might be.

27. In the case of Ms Ezeafurukwe, as put to her at hearing, one of the main issues of concern was that her previous employment and education had not been verified at the time of application.

28. The delegate referred to the findings of the Federal Court of Australia in Patel v Minister for Immigration and Border Protection [2016] FCA 165 wherein it was reasoned that it is not necessary to demonstrate that the visa holder herself was involved in the fraudulent conduct to consider cancellation against the visa holder. It was simply enough that a fraud had been conducted by ‘anyone’.

29. The delegate on the basis of the information above, held a reasonable suspicion that

    
    

    Ms Ms Ezeafurukwe’s visa was obtained as a result of fraudulent conduct by any person (in this case the Department), and there appeared to be grounds for cancellation of

    
    

    Ms Ezeafurukwe’s Class TU subclass 500 Student – Vocational Education visa under section 116(1)(g) of the Act as a prescribed ground applied to her - regulation 2.43(1)(o).

    Does the ground for cancellation exist?

30. Under s.116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s.116(g)(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

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

    TRIBUNAL’S REASONING AND FINDINGS

32. In an earlier submission Ms Ezeafurukwe’s migration agent argued that the grounds for cancellation had not been made out and did not exist, contending that the phrase, “fraudulent conduct by any person” does not include that of the Minister’s delegate acting in his or her lawful mandate as an anonymous decision-maker, completely unknown to an applicant and exercising a power to grant or refuse a visa, at a material time.  The Tribunal has considered this proposition but respectfully concludes that it is not persuaded that it was the intent of the legislators that fraud by an officer of the Department was to be excluded from the meaning of “any person”, otherwise provision for the exception would have been made.  The Tribunal therefore rejects this reasoning and is not satisfied that the grounds for cancellation have been made out on this basis.  The Tribunal has adopted, instead, an approach consistent with other decisions made by the Tribunal which focus on the strength of the evidence before it in terms of finding whether the visa was obtained as a result of fraudulent conduct. 

33. In deciding whether the ground for cancellation is made out, it is also appropriate for the Tribunal to have regard to the nature of the allegations and the gravity of the consequences.  Relevant to the facts of this case, the cancellation of a visa where the visa holder has partly completed a vocational qualification and may not have the opportunity to reapply, return and complete the qualification has significant consequences.[1]  Factual findings are therefore required to be based on rigorous analysis, probative material and not simply on speculation or a mere hunch that the visa has been obtained as a result of fraudulent conduct by any person.[2]

    [1] See decision by Deputy President and Division Head Jan Redfern and Dr Colin Huntly, 17 May 2018, Ms Ogochukwa Concilia Odinkaeze – Decision no: 1725482.

    [2] Sun v Minister for Immigration and Border Protection 2016 [FCAFC].

34. While applying civil law concepts such as ‘onus of proof’ and ‘standard of proof’ is not generally appropriate in administrative decision-making, where the certain facts form the basis for the exercise of a statutory power, those facts must be established on the material available before the power can be exercised.  The decision-maker is therefore required to be satisfied about the existence of the facts before exercising the power.  As such, the obligation is on the decision-maker to be satisfied and not on the former visa holder to establish the facts or grounds do not exist (see Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235).[3]

    [3] See decision by Deputy President and Division Head Jan Redfern and Dr Colin Huntly, 17 May 2018, Ms Ogochukwa Concilia Odinkaeze – Decision no: 1725482.

35. As per Dixon J, in Briginshaw v Briginshaw, “reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction to the tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4]

    [4] Briginshaw v Briginshaw, HCA 34 (1938) 60 CLR.

36. As highlighted in the migration agent’s more recent submission of 9 August 2019, it is apposite to inquire into (i) what constitutes “Fraudulent conduct” and (ii) the meaning of “reasonably suspects”.  As the meaning of fraudulent conduct is not set out in the regulations, the Tribunal takes the meaning in the ordinary sense and as set out Macquarie Dictionary, being: “Deceit, trickery, sharp practice, or breach of confidence, by which it is sought to gain some unfair or dishonest advantage”.  This is consistent with the meaning adopted by PAM3: “Advantage gained by unfair means, as by a false representation of fact made knowingly, or without belief in its truth, or recklessly, not knowing whether it is true or false”. 

1. The term “reasonably suspects” is also not defined in the Act or in the Regulations, however, the importance of suspicion being based on a factual basis has been judicially considered in the context of r.3.43(1)(o) and s.189 of the Act.  Consistent and verifiable established facts might give rise to a reasonable suspicion.

2. 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

3. 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,

4. 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.

5. 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.

6. The Tribunal notes that from Departmental records it would seem that Ms Ezeafurukwe’s Bank Statement from her financial supporter returned a “non-genuine result” when it was finally verified by the Department. Importantly, the Tribunal notes that this aspect of the Department’s concerns were not enunciated in the Notice of Intention to Consider Cancellation (NOICC) under s.116 of the Migration Act and indeed is set out in very vague and general terms. The Tribunal therefore queries whether the NOICC was even a valid one as clearly the issue of the bank accounts would have been a reason for the visa to be cancelled. The NOICC dated 25 August 2017 states, among other general things, “Information identified through this investigation indicates a Departmental employee may have acted improperly to grant your visa.  Therefore, it appears your visa would not have been granted, if not for this reasonably suspected fraudulent conduct.  The fraudulent conduct referred to in Reg.2.43(1)(o) is not limited to conduct by the visa”.   It would have been difficult for Ms Ezeafurukwe to respond to the allegation that the bank statements were not genuine if she had not been alerted to it.

7. Assuming the NOICC was valid for the purposes of this review, the Tribunal has difficulty with the statement that the bank statement was returned as “a non-genuine result”.  The Tribunal is unaware as to how the statement is non-genuine, that is, had it been fabricated for the purposes of the application? Or was the document genuine but the figures altered somehow.  These are valid questions in the Tribunal’s quest to assess whether the evidence shows that the visa was granted as a result of fraudulent conduct by any person and to demonstrate causation.  The findings that the bank funds were not-being genuine, are inconsistent with Ms Ezeafurukwe’s continued studies in Australia where she has clearly been able to fund these. Without the Tribunal being aware of the methodology used to arrive at a finding that the bank statements were not genuine, the Tribunal is not in a position to be satisfied that: (a) the bank statements were fraudulent; and (b) if they were, that fraudulent conduct by the Departmental officer involved in processing the application or

   
   

   Ms Ezeafurukwe resulted in the grant of the visa when it ought not have been.

8. In the migration agent’s submission of 19 September 2019, he highlights that due to the fiscal policy introduced by the Nigerian government in 2016/2017 when Ms Ezeafurukwe and her husband were about to leave Nigeria, it became difficult for many sponsors in Nigeria to directly transfer money to their wards abroad.  This was also the case for Ms Ezeafurukwe’s sponsor, Mr Henry Ezeafurukwe.  Hence an arrangement was entered into by which a person called Mr Odira Ogbaji in Australia (who had a brother in Nigeria) would give

   
   

   Ms Ezeafurukwe and her husband funds on a needs basis and that Henry Ezeafurukwe would give the naira cash equivalent to Mr Odira Ogbaji’s brother in Nigeria.  These arrangements have been attested to by way of statutory declarations which the Tribunal has sighted.  On the evidence, the Tribunal is satisfied that this arrangement has been used to fund Mr and Mrs Ezeafurukwe’s stay in Australia. Hence, it may be that the bank statements alone did not capture a fulsome picture of how the studies were being funded.

9. The Tribunal has also considered the matter of Ms Ezeafurukwe’s application having been submitted via an IP address which several other Nigerian applications also went through which were considered by the Department to have given rise to suspicion and were processed by an allegedly corrupt Departmental officer.  In passing, the Tribunal notes that this was also not a matter on which Ms Ezeafurukwe was given an opportunity to respond to during the visa cancellation process.  The Tribunal notes that Ms Ezeafurukwe’s herself did not lodge her application and that her family friend, Mr Timothy Ohaegbulam, did so.  The Tribunal is not satisfied that logically because the application was funnelled through a particular channel in which other applications were channelled, that this gives rise to a reasonable suspicion that a visa was granted to Ms Ezeafurukwe as a result of fraudulent conduct.  The Tribunal accepts that Ms Ezeafurukwe relied on the Nigerian community in Australia to assist with the application process.  More relevantly, however, the delegate cancelled the visa on the basis that Ms Ezeafurukwe’s visa application was tainted by association with other visas in this cohort.  The Tribunal is not satisfied that this is a foundation upon which reasonable suspicion can be founded. 

10. The Tribunal also notes that in the investigative reports before the Tribunal, Mr Timothy Ohaegbulam’s name has not arisen in relation to fraud or any other misconduct.

    Requirements for the grant of a Student (Temporary) (Class TU) Subclass 500 visa

11. The Tribunal sets out its reasons as to why it considers that taken out of the context of circumstances surrounding the grant of Ms Ezeafurukwe’s visa (being the fraudulent conduct of the Departmental officer) there is a strong likelihood she would have been granted the visa.

12. The criteria for a Student (Temporary) (Class TU) Subclass 500 visa are outlined in Part 500 of Schedule 2 to the Migration Regulations 1994 (the Regulations). They comprise of primary criteria and secondary criteria.

13. Relevantly, the primary criteria requires that the visa applicant:

    (1)be enrolled in a course of study (or satisfies particular criteria relating to postgraduate thesis marking applicants, Foreign Affairs students and Defence students);

    (2)be a genuine applicant for entry and stay as a student;

    (3)provide evidence of English language proficiency, if required to do so by the Minister;

    (4)have genuine access to sufficient funds available to meet their costs and expenses (and those of each member of their family unit who will be in Australia) during their intended stay in Australia and provide evidence of financial capacity if required to do so by the Minister;

    (5)provide evidence of adequate arrangements for health insurance during the period of their intended stay in Australia;

    (6)met certain age requirements, if the visa applicant is a school student;

    (7)satisfy applicable Public Interest Criteria (PIC); and

    (8)        

    satisfy special return criteria.

    
    
    

14. Below is evidence, but not limited to, submitted to the Department and the Tribunal to demonstrate that Ms Ezeafurukwe’s met the requirements for the grant of a Student subclass 500 visa:

    ·Health evidence;

    ·Attendance at Notre Dame Special Secondary School Benin City between 2000 and 2006 and graduated with a Senior West African Senior School Certificate;

    ·Intended study evidence (Letter of Offer and COEs);

    ·Documents relating to her education and employment;

    ·Evidence of  her identity (international passport);

    ·Evidence of relationship to her spouse (Marriage Certificate);

    ·Account statement showing genuine access to funds to meet course and living expenses (which it is claimed are questionable);

    ·Evidence of property ownership;

    ·International English Test System (IELTS) results, 3 September 2016 (Ref:20165);

    ·OSHC insurance;

    ·Extensive evidence of payment for education at Australian Academy of Commerce; and

    ·Evidence showing that Ms Ezeafurukwe had completed 10 units out 12 for her Diploma course at the Australian Academy of Commerce and that her overall attendance was 76.69%.

15. The Tribunal is satisfied that Ms Ezeafurukwe’s education is as set out in the documentation she has provided to the Department and the Tribunal.  The fact that Ms Ezeafurukwe’s grades and attendance in Australia had been (up until the cancellation) solid, tends to indicate that she had a secondary education and was able to cope with a Diploma level course in an international context. 

16. In terms of her employment with her father’s business, Innomate and Smart Nig Company, in addition to the evidence submitted to the Department, Ms Ezeafurukwe has submitted payslips as well as realistic photographic evidence of the existence of the company which appears to stock cosmetics as claimed.  While there seemed to be some concern that Innomate was spelt ‘Innovate’ the Tribunal can accept that an auto-correct error may have arisen.

17. The Tribunal also does not place adverse weight on the fact that the company Innomate may not have had an online presence.  It would be unreasonable to impose on Nigerian businesses the level of sophistication and global reach that other businesses in Australia might have.

18. On the basis of the evidence the Tribunal finds that Ms Ezeafurukwe was a genuine temporary entrant and would have met the requirements for the grant of a Student (Temporary)(Class TU) Subclass 500 visa, regardless of who may have processed it. 

    Conclusion

19. In this case, the Tribunal has found that the grounds upon which the cancellation was made were not supported in a convincing manner by purposive evidence. 

20. For the reasons mentioned, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(g) exists. It follows that the power to cancel the applicant’s visa does not arise.

    DECISION

21. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 560 (Student) visa.

22. The Tribunal has no jurisdiction with respect to the second named applicant.

    Rosa Gagliardi
    Member

    
    
    

Ms Ogochukwa Concilia Odinkaeze – Decision no: 1725482.