Ezeafurukwe (Migration)

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.