Igbolekwu (Migration) - [2019] AATA 327

Igbolekwu (Migration) [2019] AATA 327 (13 February 2019)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mrs Chioma Chikadibia Igbolekwu
Mr Modestus Ogbonna
CASE NUMBER:  1725587
DIBP REFERENCE:  BCC2017/2968892
MEMBERS:Deputy President J Redfern (Presiding)

Member Colin Huntly
DATE:13 February 2019
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Student (Temporary) (Class TU) Subclass 500 visa.
The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 13 February 2019 at 4.30PM
CATCHWORDS
MIGRATION – Student (Temporary) (Class TU) Subclass 500 visa – cancellation under s.116(1)(g) of the Migration Act 1958 – whether the prescribed ground in r.2.43(1)(o) of the Migration Regulations 1994 applies – visa cancelled following investigation into the circumstances surrounding the grant – consideration of the expressions ‘reasonably suspects’, ‘as a result of’ and ‘fraudulent conduct’ – insufficient evidence of a causal connection between the fraudulent conduct and the granting of the visa – ground for cancellation not established – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth), ss 48, 116, 116(1)(g), 119, 140(1), 189, 348, 352(4), 375A , 375A(2)(b), 376, 359A, 375A, 496, 499
Migration Regulations 1994 (Cth), r 2.43(1); Schedule 2, cl 500.111, 500.211, 500.212, 500.213. 500.214, 500.216, 500.217, 500.218; Schedule 4, 4013
Privacy Act 1988(Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
George v Rockett (1990) 170 CLR 104
Guo v Commonwealth of Australia [2017] FCA 1355
Odinkaeze (Migration) [2018] AATA 1295
Patel v Minister for Immigration and Border Protection [2016] FCA 165
Rani & Ors v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379
Rani v Minister for Immigration and Border Protection [2015] FCCA 445
Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634
Shi v Migration Agents Registration Authority [2008] HCA 31
Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93
Sun v Minister for Immigration and Border Protection [2016] FCAFC 52
Tien & Ors v MIMA (1998) 89 FCR 80
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235
SECONDARDY RESOURCES
Procedural Instruction: ‘General visa cancellation powers (s109, s116, s128, s134B and s140)’
Procedures Advice Manual – PAM3 - ‘Migration Regulations – Schedules 2 Visa 500 – Student’
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision dated 13 October 2017 made by a delegate of the Minister for Immigration to cancel the first named applicant’s (the applicant) Student (Temporary) (Class TU) Subclass 500 visa under s.116 of the Migration Act 1958 (the Act).
The delegate cancelled the visa under s.116(1)(g) on the basis that he reasonably suspected the applicant’s visa had been obtained as a result of the fraudulent conduct of a Department officer. 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 applicant, Mrs Chioma Chikadiba Igbolekwu. The second named applicant, Mr Modestus Ogbonna, is Mrs Igbolekwu’s husband. His 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.[1] 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.
[1] See, Rani & Ors v Minister for Immigration & Multicultural Affairs (1997) 80 FCR 379 at 385, 393 and 400; Tien & Ors v Minister for Immigration & Multicultural Affairs (1998) 89 FCR 80 at 96.
The applicant appeared before the Tribunal on 19 April 2018 to give evidence and present arguments. She was represented by her registered migration agent, who provided written submissions and documents in support of the application prior to and following the hearing. There was a delay in the proceedings because the applicant changed representatives after the hearing. There was also a request for access to documents under s.362A of the Act and a delay in submissions pending consideration of the documents produced under s.362A of the Act. Further submissions and evidence were provided on 14 and 21 January 2019.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
RELEVANT LAW AND POLICY
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 and secondary criteria.
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]
(2)be a genuine applicant for entry and stay as a student;[3]
(3)provide evidence of English language proficiency, if required to do so by the Minister;[4]
(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]
(5)provide evidence of adequate arrangements for health insurance during the period of their intended stay in Australia;
(6)met certain age requirements,[6] if the visa applicant is a school student;[7]
(7)satisfy applicable Public Interest Criteria (PIC);[8] and
(8)satisfy special return criteria.[9]
[2] Migration Regulations 1994, cl.500.211.
[3] Ibid cl.500.212.
[4] Ibid cl.500.213.
[5] Ibid cl.500.214.
[6] Ibid cl.500.216.
[7] Ibid cl.500.111.
[8] Ibid cl.500.217. For example, PIC 4001 (Character), 4002 (Security requirement), 4003 (Foreign Minister requirements), 4004 (Debts to the Commonwealth),4005 (Health requirements), 4010, 4013 (Risk factor), 4014 (Risk factor), 4020 (Fraud), 4021 (Passport requirement) and 4019 (Values statement).
[9] Migration Regulations 1994, cl.500.218. The relevant public interest criteria are PIC5001, 5002 and 5010.
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, this includes the ground set out in s.116(1)(g) which provide that the Minister may cancel a visa if he or she is satisfied that a ‘prescribed ground’ for cancelling a visa applies to the holder. Regulation 2.43(1) sets out the grounds prescribed for the purposes of s.116(1)(g) and includes r.2.43(1)(o) which gives the Minister the power to cancel a visa where,
…. the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person;
Before the power can be exercised, the visa holder must be notified that there appears to be grounds for cancelling the visa, particulars of which and the information on which the grounds appear to exist must be given. The visa holder must also be invited to show, within a specified time, that those grounds do not exist or that there are reasons why the visa should not be cancelled: s.119 of the Act.
If satisfied that the ground for cancellation under s.116 is made out, there is discretion whether to cancel the visa. The Act and Regulations do not specify any mandatory considerations that should be taken into account when exercising the discretion, nor has the Minister issued directions under s.499 about the factors to be considered. The Department of Home Affairs (the Department) has, however, issued government policy (Procedural Instruction: ‘General visa cancellation powers (s109, s116, s128, s134B and s140)’) about the matters that may be relevant to consider when exercising the discretion. The matters include, for instance; the purpose of the visa holder’s travel and stay in Australia; hardship; the circumstances in which the ground of cancellation arose; any mandatory legal consequences arising from the cancellation; and, whether any international obligations would be breached as a result of the cancellation.
Relevantly, the mandatory legal consequences of cancellation may include the application of s.48 of the Act and PIC 4013. Section 48 provides, among other things, that a person in Australia who does not hold a substantive visa and whose visa has been cancelled under s.116 may only apply for visas of a class prescribed in r.2.21 of the Regulations. Further, if a visa previously held by the person was cancelled under s.116, a three year exclusion period applies: PIC 4013, Schedule 4 of the Regulations.
The Minister may delegate to a person any of the Minister’s powers under the Act: s.496 of the Act. The Minister has delegated the power under s.116 to certain officers of the Department. Procedural Instruction: ‘General visa cancellation powers (s109, s116, s128, s134B and s140)’ provides guidance to decision makers in exercising the powers under s.116. In this case, the decision to cancel the applicant’s visa was made by a delegate of the Minister.
It is a long established principle that the Tribunal on review must consider the matter afresh based on the material before it and is not bound by the findings of the delegate.[10] It is also well established that the Tribunal should have regard to lawful government policy unless there are cogent reasons to the contrary.[11] As already noted, the relevant policy is Procedural Instruction: ‘General visa cancellation powers (s109, s116, s128, s134B and s140).’ The policy is detailed, sets out relevant matters to consider when exercising the discretion whether to cancel a visa and, on the face of it, it is not inconsistent with the Act. We are therefore satisfied that the relevant policy is lawful and should be applied in the event we find the ground for cancellation is established.
[10] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] (per Hayne and Heydon JJ).
[11] Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.
Civil law concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making. However, in cases where the existence of 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. In other words, the decision maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision maker to be so satisfied and not on the former visa holder to establish the facts or grounds do not exist: refer Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32].
In deciding whether the ground for cancellation is made out, it is appropriate for the Tribunal to have regard to the nature of the allegations and the gravity of the consequences: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 (Flick and Perry JJ) at [120]. Relevant to the facts of this case, the cancellation of a visa where the visa holder has completed a vocational qualification, has been accepted for enrolment in a related tertiary qualification and may not have the opportunity to apply for a further visa to study and complete the qualification, has significant consequences. As such, any factual findings should be based on logical and probative material and not speculative information or inexact proofs. This is the approach we have taken in our review of the evidence and in making the critical findings.
BACKGROUND
Mrs Igbolekwu is a 29 year old Nigerian citizen. She lodged an online application on 22 March 2017 for a Class TU Subclass 500 Student – Vocational Education Sector visa to study a Diploma of Nursing. The applicant also lodged various supporting documentation including, evidence of financial capacity, health insurance, that she satisfied the genuine temporary entrant requirements, her intended course of study and identity.
In particular, the applicant provided details of her previous education qualifications and experience as well as details of her employment as an assistant in nursing with the St Charles Clinic in Owerri Imo State, Nigeria. She also provided a letter of offer and a confirmation of enrolment in a Diploma of Nursing with TAFE International Western Australia. The course was due to commence on 17 July 2018 and end on 14 December 2018. The applicant was sponsored by family members in Australia, including Mr Kennedy C Ogbonna (Brother-in-law) and Ms Stacy M Ogbonna.
The applicant’s Subclass 500 Student visa was granted on 27 March 2017 and is due to expire on 14 February 2019.
The applicant arrived in Australia with her husband on 9 May 2017. She commenced her course as required under the conditions on her visa.
On 25 August 2017, a delegate of the Minister sent to the applicant a notice of intention to consider cancellation (NOICC) of her visa. The ground given for this notice was that there was a reasonable suspicion the applicant’s visa had been obtained as a result of the fraudulent conduct of another person. The particulars provided by the delegate were to the effect that the Department had conducted an investigation into the circumstances leading to the grant of the applicant’s visa and the investigation identified information that ‘a departmental employee may have acted improperly to grant [the applicant’s] visa.’ It was further noted that the applicant’s visa would not have been granted if not for the reasonably suspected fraudulent conduct of the departmental employee. On the basis of the suspected fraudulent conduct of the departmental employee, the delegate decided that there appeared to be a ground for cancellation of the applicant’s visa under s.116(1)(g) of the Act on the basis of a prescribed ground under r.2.43(1)(o) of the Regulations.
The applicant responded to the NOICC by email dated 31 August 2017. In her response, the applicant stated that she had applied for the visa and followed all of the ‘processes as required.’ According to the applicant, she had complied with all conditions attaching to her visa. The applicant denied any wrongdoing.
On 13 October 2017, a delegate of the Minister decided to cancel the applicant’s visa. The delegate was satisfied that the grounds for cancellation under s.116(1)(g) of the Act were established because the prescribed ground for cancellation in r.2.43(1)(o) applied in the circumstances of this case. In making this decision, the delegate relied on an investigation undertaken by the Department in finding that the behaviour of the departmental employee amounted to fraudulent conduct which resulted in the applicant obtaining her visa. The delegate further found that the evidence supporting the ground for cancellation was provided by ‘reliable verifiable sources.’ As discussed above, r.2.43(1)(o) allows the Minister, or his or her delegate, to exercise the discretion where it is reasonably suspected that a visa holder’s visa was obtained as a result of the fraudulent conduct by any person. It appears that the delegate formed the view that it was not necessary to establish that any fraudulent conduct was committed by the visa holder.
In considering whether to cancel the applicant’s visa, the delegate gave weight to the fact that the applicant had maintained enrolment in her nominated course during her stay in Australia; she had complied with the conditions on her visa; and, she and her husband would suffer hardship if the visa was cancelled. However, these matters were given little weight in the applicant’s favour. The delegate considered the applicant’s claim that she had ‘no knowledge of’ the fraud but also gave this little weight in the applicant’s favour because the delegate was found the visa had been granted on the basis of the fraudulent conduct of another person, namely the Department officer. It was noted that the applicant had been cooperative and this was given some weight. The delegate noted that if the applicant’s visa was cancelled, she would be subject to s.48 of the Act which means she would ‘have limited options to apply for further visas in Australia.’ It was also noted that if the applicant’s visa was cancelled, she would become an unlawful non-citizen and would be liable for detention and removal from Australia[12] unless she applied for another visa or voluntarily departed Australia. The applicant would also be subject to PIC 4013, which may result in a three year exclusion period. It was noted that the visa of the applicant’s husband would be cancelled by operation of s.140 of the Act. However, these matters were given little weight as they were said to ‘relate to the intended legislative consequences of cancellation.’ It was noted that the applicant was a Nigerian national but there was no information before the delegate to suggest the cancellation would result in a breach of Australia’s non-refoulement obligations. This matter was therefore given no weight.
[12] Sections 189 and 198 of the Act.
After considering these matters, the delegate concluded that ‘the grounds for cancelling the visa outweighed the reasons not to cancel.’
On 19 October 2017, the applicant applied for review of the decision to this Tribunal.
DEPARTMENT INVESTIGATION
The Tribunal was provided with the Department file, which included among other things a Visa Cancellation Referral Report, the Investigation Reports LES Misconduct (which were partially redacted) and an internal referral to the General Cancellations Network dated 6 September 2017. Following correspondence with the Department, the Tribunal was provided with copies of the Referral and Investigation Reports as well as attachment to these reports.
It is apparent that the delegate relied on the aforementioned reports in relation to an investigation undertaken by the Department about alleged corrupt conduct of Department officers working at the Australian High Commission (AHC) in Pretoria. The reports were not provided to the applicant by the Department. Nor was the applicant given particulars of the information contained in those reports in the NOICC.
The reports referred to above were provided to the Tribunal after a request was made by the Tribunal pursuant to s.352(4) of the Act for access to these documents.
Section 352(4) of the Act provides that the Secretary must provide to the Tribunal ‘each other document, or part of a document, that is in the Secretary's possession or control and is considered by the Secretary to be relevant to the review of the decision.’ Because the information and findings in these reports were relied on by the delegate to form the basis for the ‘reasonable suspicion’ that the applicant’s visa was obtained as a result of fraud, the Tribunal considered these documents would fall into the category of documents that would be considered by the Secretary to be relevant to the review of the decision. The Tribunal is required to ‘stand in the shoes’ of the decision-maker and therefore must consider all relevant material, including material available to the delegate. Ultimately there was no dispute about this matter and the reports were provided, although it is relevant to note that the reports were not provided in their entirety in the initial stages of the review. Indeed, a complete set of the various reports were not provided to the Tribunal until April 2018. Relevantly, certain attachments to the investigation reports, being the case assessment review referred to below, were not provided at the outset.

This information is included by way of context and to explain the delay in the review. The nature and content of the reports, how the adverse information contained in those reports was provided to the applicant and how the applicant responded to those reports is dealt with in more detail later in our reasons.
Given the information in these reports is said to establish the ground for cancellation, it is relevant to summarise the content, nature and effect of these reports.
According to a document provided to the Tribunal headed ‘Visa Cancellation Referral Report’ dated 10 August 2017 from Australian Border Force, the Department identified a link between offshore nationals engaging in criminal activity and visas granted by a Department officer working at the AHC in Pretoria. This led to a joint investigation with the Australian Commission for Law Enforcement Integrity, which commenced in early 2017.
In brief, the investigation found that there was corrupt conduct by two Department officers in the office of the AHC in Pretoria in processing student visas (referred to in these reasons as ‘Officer A and B’). Officer A was the more senior officer. It is alleged this officer involved Officer B. The corrupt conduct was said to involve Officer A and B ‘bypassing’ the mandatory allocation of cases through the Department’s work management system and ‘recklessly’ approving the grant of student visas to Nigerian applicants, without following the ‘otherwise rigorous assessment’ process that would have been applied to Nigerian applicants as part of Department risk profiling. Nigerian applicants appear to have been assessed as a higher risk category of applicants by the Department, warranting more rigorous case assessment. These case assessment processes involved a range of additional assessments which included a direction to ‘check employment and education documents for any evidence of fraud.’ This was one of several checks specified in a three page assessment direction, being the ‘Student Visa Assessment Methodology’ which is referred to in, and attached to, the visa Cancellation Referral Report. It was alleged that money was paid to at least one of the Department officers (Officer A) by third parties who were associated with a number of Nigerian students at the Australian colleges referred to in the report. There is no allegation that Officer B received such payments.
Attached to the Visa Cancellation Referral Report are two reports headed ‘Investigation Report LES Misconduct’ – one in relation to each Department officer. These reports summarise the investigation undertaken and analyse twenty two visa applications of Nigerian students that were approved by Officers A and B (eleven for each). One investigation report deals with applications approved by Officer A and the other one deals with applications approved by Officer B. Each of the reports discloses a detailed account of the investigations undertaken and allegations made in respect of twenty two visa applicants.
The applicant’s visa is one of twenty applications identified by the Department in the Referral Report as being tainted by the alleged corrupt conduct of Officer B. This is because they were approved by the officer in February, March and April 2017, even though they had not been assigned to her through the Department’s case management system or by her team leader. According to the reports, when Officer B was interviewed, she denied being involved in fraudulent conduct. Officer B said that she had processed applications referred to her because she had relied on Officer A and she was concerned about keeping up with ‘her numbers’, meaning her performance benchmarks. Officer B said she applied little scrutiny to the applications because she believed Officer A had done this but accepted that there were four case examples where her decision to grant the visa was ‘appalling’. There is no evidence in any of the reports that the applicant’s visa fell into this category. We particularly note that, at least as evinced by the various investigations reports, there was no further analysis undertaken about the processing and assessment of the applicant’s visa application.
A table headed ‘Appendix 1’ in the Visa Cancellation Referral Report sets out details of the visa applicants in respect of which it is alleged there was fraud by Officer B. It is of significance that, while some of the visa applicants referred to in Appendix 1 were the subject of the more detailed investigation report in respect of Officer B, some were not. We also note that some visa applicants whose visas were approved by Officer B were included in the more detailed investigation reports but were not referred to in Appendix 1. It is not clear to us from the various reports why this partial treatment of cases within the ‘tainted’ category of visa applications occurred. We specifically note that there are eleven visa applicants referred to in Appendix 1 in respect of which there are no allegations made in the more detailed investigation report relating to Officer B. The applicant is one of those visa applicants.
The Department undertook a further review of eleven of the affected applications. The review was undertaken by an experienced senior officer of the Department who assessed whether the visa holders would have satisfied the student visa requirements (the case assessment review). The case assessment review was not provided to the Tribunal in the first instance, but was provided following a request from the Tribunal. The applicant’s visa application was not one of those reviewed in that report. Importantly, there is nothing in the material before the Tribunal to indicate how the sample of cases, that were the subject of the case assessment review, were selected for additional scrutiny. For example, there is no discussion of the sampling methodology adopted. Accordingly, we have no assurance about the extent to which this sample can be said to reflect the category of cases from which it is drawn.
On review, we particularly note that there is no allegation in any of these reports that the applicant’s student visa application was deficient or should not have been approved for any substantive reason.
According to an internal referral to the General Cancellations Network in the Department dated 15 August 2017, it was noted that the Integrated Client Services Environment (ICSE) records ‘show’ Officer B did not verify the applicant’s employment or educational claims. There was no allegation about this in the Visa Cancellation Referral Report or the Investigation Report LES Misconduct for Officer B, but this information was referred to the delegate by the General Cancellations Network. Accordingly, there appears to have been information before the delegate relating to the general context within which the applicant’s application was processed, much of which did not specifically relate to the applicant’s individual visa application. It is clear that the delegate formed the view that this information was relevant to assessing the fraudulent conduct of the officer who processed the applicant’s visa application. It is also clear that the delegate was satisfied that this was sufficient to meet the cancellation requirement set out at r.2.43(1)(o) of the Regulations.
In summary, the applicant is included in Appendix 1 as a visa applicant in respect of which it is alleged there was a reasonable suspicion of fraud. While not expressly stated, the basis for the reasonable suspicion appears to be that the applicant’s application for a student visa was approved by Officer B even though she had not been formally assigned the case through the Department’s case management system or her team leader; Officer B had an association with Officer A; Officer A had received certain unlawful payments from third parties; Officer B had not satisfactorily explained her role in the approvals; and Officer B approved this application within five days from the date of application. There is no evidence of any link between payments made to Officer A and the approval of the applicant’s visa by Officer B. Nor is their evidence of any link between parties said to be associated with Officer A and other Nigerian visa applicants. Further there is no evidence that the applicant’s visa application was deficient or would not have been approved in the normal course.
It is unclear whether the delegate relied on the ICSE records, because there is no reference to this in the record of decision but this information was certainly before the delegate and is before the Tribunal. A review of the relevant ICSE record indicates that there are no entries or notation regarding the verification of the applicant’s employment and educational details. In our view, this does not of itself ‘show’ Officer B did not verify the employment and educational history of the applicant. There is no evidence that these records provide a complete record of inquiries undertaken by visa assessment officers and it is possible not all matters were recorded. The absence of a notation in the ICSE records suggests the verification may not have been undertaken in this case but in the absence of evidence about the status of these records, any conclusion about this would be speculative. Certainly, there is no evidence in the background reports available to the delegate or to the Tribunal that would suggest that this would otherwise disqualify the applicant for the visa for which she had applied.
There was no further evidence provided to the Tribunal by the Department.
PROCEDURAL ISSUES
As already noted, the Department provided the Tribunal with the Visa Cancellation Referral Report and the Investigation Reports LES Misconduct (which were partially redacted) were provided after a request was made to the Department for access to this material. These documents were the subject of a certificate under s.375A of the Act. A number of the attachments to the Visa Cancellation Referral Report were not provided, including the Student Visa Assessment Methodology and the Report containing detailed case assessments for eleven of the student visa applications which were the subject of the investigations.
Section 375A provides that certain information is to be disclosed to the Tribunal only, if the Minister has certified that more general disclosure would be contrary to the public interest for any reason specified in the notice. If a non-disclosure certificate is issued the Tribunal must ‘do all things necessary’ to ensure that the document or information is not disclosed to any person other than the member who is constituted for the purpose of conducting the review: s.375A(2)(b) of the Act.
The Tribunal corresponded with the Department about the validity and scope of the certificate and on 19 February 2018 the Department revoked the s.375A certificate and issued a new certificate in respect of the Visa Cancellation Referral Report and the Investigation Reports LES Misconduct under s.376 of the Act. Section 376 gives the Tribunal discretion to disclose information or documents which may be the subject of a certificate if the Tribunal considers it appropriate to do so, having regard to any advice given by the Secretary about the significance of the documents or information.
The Department also provided to the Tribunal redacted versions of the Visa Cancellation Referral Report and the Investigation Reports LES Misconduct. The Tribunal notes that the information redacted included the names of the Department officers and third parties who were the subject of the investigation as well as the names and details about investigations undertaken in respect of the other Nigerian students.
This redacted version of the Visa Cancellation Referral Report and the Investigation Reports LES Misconduct and a redacted version of the internal referral to the General Cancellations Network dated 9 September 2017 were provided to the applicant and her representative by the Tribunal by letter dated 22 March 2018. The Tribunal notes that the redated versions of the Referral Report and Investigation Reports was subsequently released on 6 November 2018 as part of the Tribunal file The Tribunal also requested the applicant’s comments or response in relation to adverse information contained in the referrals and reports under s.359A of the Act. A response was provided prior to the hearing, which included a statement from the applicant setting out the circumstances in applying for the visa and denying any wrongdoing.
The Tribunal did not release copies of the unredacted reports, which were the subject of the s.376 certificate. In reaching the decision not to release these reports, the Tribunal had regard to the public interest reasons specified by the Secretary (which refer to prejudicing a current investigation and disclosing investigative methods) and the public interest in protecting personal privacy, in accordance with the principles set out in the Privacy Act 1988 (Cth). The Tribunal also had regard to the fact that the information released was sufficiently detailed to provide the applicant and her representative with particulars of the investigations and the findings made in respect of the applicant’s student visa application. The views of the applicant were sought and no submissions were made about the validity of the certificate. At the hearing the applicant’s representative advised that the applicant was satisfied with the information released.
EVIDENCE AND SUBMISSIONS
The applicant said that she had applied for the student visa online at an internet café because she did not otherwise have access to the internet. She completed the application herself and did not have the assistance of any third parties, apart from the internet café proprietors. She applied to study a Diploma of Nursing because she had worked as a nursing assistant at St Charles Clinic in Imo State, Nigeria for eight years and wanted to become qualified. The applicant denied being involved in or being aware of any fraud by Department officers and said she had provided all relevant information in support of her application.
The applicant was able to give a detailed account of her day to day duties while working at the St Charles Clinic. She was also able to give a detailed account of her education qualifications. The applicant provided copies of various certificates and transcripts of her qualifications and the courses completed, together with a letter from St Charles Clinic about her employment with the Clinic, in support of her application for a visa. On their face, these documents were complete and genuine. There was no evidence before the Tribunal that these documents were fraudulent or suspicious. Internet searches revealed that St Charles Clinic and the educational institutions referred to in her application exist. The applicant provided detailed, credible evidence about her application and her qualifications and employment.
The applicant’s brother-in-law Mr Kennedy Ogbonna also attended the hearing and provided evidence. He said that he had financially assisted the applicant and her husband (the witness’ brother) while they were living in Perth. He did not assist with the application other than providing a letter of support. The applicant’s husband, Mr Modesta Ogboona, also gave evidence. He said that in Nigeria he had a small business and sold the shop to support the applicant’s study. There would be significant hardship if her visa remained cancelled and she could not complete the course.
The applicant provided evidence about the progress of her studies in Australia. She also provided documentary evidence that she had already completed the Diploma of Nursing course at TAFE International Western Australia. She had been provided with a Conditional Letter of Offer from the University of Technology Sydney on 9 November 2018 to study a Bachelor of Nursing from 11 March 2019 subject to the applicant successfully completing her Diploma of Nursing. In a submission provided to the Tribunal on 21 January 2019, the applicant advised that, subject to the outcome of her current application for review, she would make a further visa application to study the Bachelor of Nursing, but if her application was unsuccessful she would voluntarily depart.
Based on the available evidence, we are satisfied the applicant was not knowingly involved in any fraud by department officers in Pretoria and she had provided sufficient information to substantiate her claim for a student visa nor is there any allegation of this. Relevantly, she was accepted for enrolment in a Diploma for Nursing, this course was relevant to her previous employment in Nigeria and she provided employment and educational records as required. She has now obtained her Diploma of Nursing. This does not of itself negate any inference of fraud or knowing involvement but it tends to discount the possibility given it is difficult to understand the motivation or need for the applicant to engage in such activity. Nor is there evidence that the applicant or any person associated with her paid money to either Officer A or Officer B.
CONSIDERATION OF CLAIMS AND EVIDENCE
Does the ground for cancellation exist?
General principles
The Tribunal must be satisfied that a prescribed ground for cancellation exists. The prescribed ground identified is the ground set out in r.2.43(1)(o) which requires that the decision maker must reasonably suspect that the visa, which is the subject of cancellation, has been obtained as a result of the fraudulent conduct of any person.
The term ‘reasonably suspects’ is not defined in the Act or the Regulations but its meaning has been judicially considered in the context of r.2.43(1)(o) and s.189 of the Act. The following is a summary of the key principles that can be drawn from these authorities:
(1)It is not necessary for the decision maker to be satisfied that the visa was obtained by fraud, a reasonable suspicion is sufficient.[13]
(2)A reasonable suspicion must be founded on objective circumstances, which are more than mere surmise or conjecture.[14] The factual foundation required to ground a reasonable suspicion is less than that required for a belief.[15] Whether a different decision maker would have formed the same state of suspicion is irrelevant. What matters is that the state of reasonable suspicion reached by the Tribunal is open to it on the facts.[16]
(3)The evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend.[17] It does not require ‘the evidence be such that the Tribunal’s reasonable suspicion was of facts established on the balance of probabilities.’[18]
(4)Whether a suspicion is reasonable is a question of fact to be determined in the light of all surrounding circumstances applicable to the particular case.[19]
(5)The required state of mind is suspicion, not belief, so that the facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.[20]
(6)Regulation 2.43(1)(o) speaks of fraudulent conduct by ‘any person’. As such, it is not necessary for the Tribunal to be satisfied that the visa holder has been involved in or is aware of the fraudulent conduct: Patel at [23] (per Bromberg J).
[13] Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [22] (per Bromberg J).
[14] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [86] (per Flick and Rangiah JJ) citing George v Rockett (1990) 170 CLR 104 at 115 – 116.
[15] Sun v Minister for Immigration and Border Protection at [48] (per Flick and Rangiah JJ).
[16] Ibid at [48] (per Flick and Rangiah JJ).
[17] Rani v Minister for Immigration and Border Protection [2015] FCCA 445 at [18] (per Judge Driver).
[18] Ibid.
[19] Guo v Commonwealth of Australia [2017] FCA 1355 at [44] (per Jagot J) and Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [23].
[20] Guo v Commonwealth of Australia [2017] FCA 1355 at [35].

Fraudulent conduct is not defined in the Act or Regulations. The ordinary English meaning of ‘fraud’ as set out in the Macquarie Dictionary (online edition) is:
[D]eceit, trickery, sharp practice, or breach of confidence, by which it is sought to gain some unfair or dishonest advantage.
This is consistent with the Procedural Instruction which also adopts the Macquarie Dictionary definition and states that ‘fraudulent conduct’ is an:
[A]dvantage 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.[21]
[21] Procedural Instruction: ‘General visa cancellation powers (s109, s116, s128, s134B and s140)’.
Regulation 2.43(1)(o) requires that the decision maker must reasonably suspect that the visa has been obtained as a result of the fraudulent conduct. This phase is not defined in the Act or Regulations but adopting the plain and ordinary meaning of the phase would suggest that a ‘causal connection’ is required. That is, but for the fraud the visa applicant would not have obtained the visa.
This is consistent with Department policy. Relevantly, the Procedural Instruction provides that:
[I]t is not enough to 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.[22] [Emphasis added]
[22] Ibid.
It is clear from the two examples given in this part of the Procedural Instruction that some link between the fraud of the person in question and the visa applicant and the nature of the legitimate benefit is envisaged. This is reflective of the stipulation in r.2.43(1)(o) that the visa has been ‘obtained’ rather than that the Visa has been ‘granted’ as a result of the fraud.
In Patel the fraud alleged was the admitted fraud by a director of the sponsor about matters that were fundamental to the grant of the visa. Is not alleged that the visa applicant was involved in or knew of the fraud. Bromberg J said at [23]:
……it was not necessary for the Tribunal to have been satisfied that Mr Ali and Golden Eyes had been involved in fraudulent conduct. It was sufficient for the Tribunal to have come to the view, which it did, that it reasonably suspected that the Visa had been obtained as a result of fraud.
Patel is authority, in the event there is any dispute, that r.2.43(1)(o) extends to fraudulent conduct by any party, not just the visa applicant. However, Patel provides no guidance as to how to assess whether a visa has been obtained as a result of the fraudulent conduct by any person. Nor does Patel speak of what is sufficient to establish the essential causal connection between the fraud and the obtaining of the visa. Is it enough for the officer who has granted the visa to be tainted by suspicion of fraud even though there is no evidence the visa applicant has been involved in the fraud in any way or would not have obtained the visa in the normal course of processing?
Analysis and Findings
There is sufficient evidence from the Department to support a finding that there is a reasonable suspicion of fraud by Department Officer A and possibly Officer B in relation to the granting of student visas to certain Nigerian nationals in the office of the High Commission in Pretoria. We are satisfied about this based on the information contained in the Visa Cancellation Referral Report, the two Investigation Reports in respect of Officer A and Officer B and the attachments to these reports, including the case assessment report.
As already noted, there is neither probative evidence or allegation that the applicant knew or was involved in any fraud by Department officers. Establishing knowledge or ‘knowing involvement’ is not necessary to enliven the power to cancel, but it is a relevant consideration in the exercise of the discretion. This is consistent with the Department’s own selective internal review of the merits of a sample of the ‘tainted’ visa applications referred to above. As such, this is a material finding of fact.
The question before us, however, is the more complex one of whether there is sufficient evidence to form the basis of a reasonable suspicion that the visa has been obtained as a result of the fraudulent conduct of any person.
The evidence which is said to taint the grant of the applicant’s visa is the fact it was granted Officer B even though the application had not been allocated to her through the case management system or by her team leader. The application was approved in five days and there is a notation in the ICSE records about the assessment made, which does not record verification of the applicant’s employment records or qualifications.
Compared to the evidence available in respect of a number of other Nigerian nationals whose visas were approved by Officer A or B as outlined in the Visa Cancellation Referral Report, the available evidence about the link between the granting and subsequent obtaining of the visa by the applicant to the fraud is weak. Despite the extensive investigations, there is no evidence that payments were made or received in respect of this applicant; there is no evidence that the email address used to lodge the application was identical to other applications; and, there is no evidence that the applicant’s application was deficient. The application appeared to be complete and even though the ICSE record does not refer to the verification of employment and educational references, this does not establish that the verification was not undertaken or, if it was not, that the failure to verify those references was anything other than, for instance, incompetence on the part of Officer B.
The most compelling evidence about the potential fraud is the fact Officer B undertook a review of a number of Nigerian student visas when there is evidence this was not her role. Officer B’s role was to assess low risk student visa applications, not high risk applications such as those from Nigeria. The fact the application was assessed in five days does not of itself evince fraud or irregularity because there was no evidence before the Tribunal about the range of usual processing times. Indeed, as discussed above, even if that were the case, it does not demonstrate any qualitative deficiency or lack of fidelity in the applicant’s application for the visa in question.
The evidence contained in the Departmental records may give rise to a reasonable suspicion of fraud in relation to the granting of the application because Officer A referred the application to Officer B for consideration and approval when this was not part of Officer B’s role. However, this does not dispose of the more complex question of whether there is sufficient evidence that the visa has been obtained as a result of the fraudulent conduct of any person
We note that there is evidence before us that the applicant’s visa should not have been granted by Officer B in the circumstances of this case but may well have been approved by another authorised officer. As such, while there is evidence of fraud in the conduct of the relevant Departmental officers, the visa may well have been obtained in the normal course of processing because the available evidence suggests the applicant had provided all necessary supporting documentation and lodged the application in the usual manner.
This case is different from Patel because the fraud in that case went to the heart of the criteria for the relevant visa. While the scope of r.2.43(1)(o) is broad because it speaks of fraud by ‘any person’, the words of the regulation expressly limit its operation by the requirement that the visa be ‘obtained as a result of the fraudulent conduct.’ Accordingly, the reasonable suspicion must attach not only to the fraud but the finding the visa was obtained as a result of the fraud. The fact there is no evidence the visa applicant or any person associated with her was involved in the fraud and the fact there is prima face evidence the applicant’s visa would have been approved in the normal course are relevant matters.
Our application of the law to the facts of this case is consistent with the Department’s interpretation of the operation of the regulation in the Procedural Instruction but more importantly it is consistent with the words of the Regulation. The policy behind the r.2.43(1)(o) is to promote the integrity of the visa system. If a visa is obtained that does not meet the criteria then it should be subject to cancellation, regardless of whether there is fault by the visa applicant. The circumstances in Patel are a good illustration of this.
Fraud may occur in a number of different ways and not all may have a direct impact on the obtaining of a visa. The circumstances of this case are unusual in that not only is there no evidence the visa applicant or anyone associated with her was involved in the fraud but the available evidence suggest she would have obtained the visa in the normal course. The Department has not provided any evidence for us to conclude otherwise. If there had been evidence to this effect, our conclusions would have been different. In such a case, there would have been sufficient evidence to establish a reasonable suspicion that the applicant’s visa had been obtained by the fraudulent conduct of any person, namely Officer B.
The alleged misconduct of Officer A and Officer B may form the basis for criminal, disciplinary or civil action by the Department against them. We have no further information in this regard. The lack of probity by Department officers certainly challenges the integrity of the Department’s systems and procedures of operation but if there is insufficient evidence that strikes at the heart of the visa obtained, there is an argument that the policy behind r.2.43(1)(o) is not advanced by the cancellation of the visa.
In Odinkaeze (Migration) [2018] AATA 1295, which was another application for the review of the cancellation of a Nigerian student visa in circumstances where there was a paucity of evidence, we were not satisfied there was sufficient evidence to establish a reasonable suspicion that the applicant’s visa was obtained as a result of the fraud of the allegedly corrupt Department officer. In that case the delegate concluded that the fact the applicant would have met the Student Visa Assessment Methodology was irrelevant and the evidence of the fraudulent conduct and the allegedly corrupt Department officers conduct more generally was sufficient to satisfy the test of reasonable suspicion. The Tribunal concluded this was not enough and it was necessary to establish that there was a causal link between the conduct and the obtaining of the visa. Having regard to the evidence before us, which is similar to the evidence in this case, we were not satisfied there is sufficient probative evidence to otherwise implicate the granting of the applicant’s visa in the broader allegations of fraud uncovered by the Department. In other words, there was insufficient evidence of a causal connection between the fraudulent conduct and the grant of the visa in that particular case (refer at [49] and [51]). This is in contrast to Mbelu (Migration) [2018] AATA 3174 where the Tribunal, differently constituted but with the same Presiding Member, decided there was sufficient evidence to establish a reasonable suspicion to enliven the power to cancel under s.116(1)(g). In Mbelu there was strong evidence of a causal link between the granting of the applicant’s visa and the alleged fraudulent conduct.[23]
[23] See generally, Mbelu (Migration) [2018] AATA 3174 at [78]-[79].
Whether a suspicion is reasonable is a question of fact which must be based on objective matters, not mere surmise or conjecture. It will depend on the circumstances of the case and the strength of the available objective evidence, which should be assessed by reference to the principles enunciated by the Full Federal Court in Zhao and Sullivan. In both this case and the previous case of Odinkaeze, we have found there is insufficient evidence to establish a reasonable suspicion of the causal link between the conduct and the granting of the visa.
For these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(g) exists. However, we accept that minds may differ and that the circumstances surrounding these Nigerian student applications more generally combined with the fact Officer B approved this visa may be considered sufficient to establish a reasonable suspicion to enliven s.116(1)(g).
Even if we had been satisfied that the threshold for cancellation was established, the ground does not require mandatory cancellation under s.116(3). As such, we would have been required to consider Department guidelines as set out in the Procedural Instruction to decide whether the applicant’s visa should remain cancelled.
In this case, in applying those guidelines we would have exercised the discretion in the applicant’s favour. Not all of the matters identified in the Department guidelines are relevant to the current case, however, some are apposite.
One of the relevant factors is the purpose of the visa holder’s travel to and stay in Australia. There is no longer a compelling need for the applicant to remain in Australia on this visa as the visa will soon expire and she has completed her Diploma of Nursing. The fact the applicant wishes to undertake further studies will not extend her stay under this visa, she will need to apply for another visa which will be assessed on its merits. As such, this would not be a factor that would have weighed against cancellation.
However, the balance of the factors would have overwhelmingly weighed in her favour. There is no evidence of a breach of her visa conditions and despite initial delay outside the applicant’s control because she and her partner were detained pending the grant of a bridging visa, she has finished her course. There is no evidence of past misconduct or lack of co-operation with the Department, the Tribunal or the investigation. Relevantly, we are satisfied the applicant was not involved in any fraud and that she was likely to have satisfied the relevant visa criteria in any event. We are also satisfied that if the applicant’s visa remained cancelled she would be not able to make an onshore application for another visa by reason of s.48 of the Act and would be precluded from making any further applications for a visa for a period of three years by reason of the PIC 4013 in Schedule 4 to the Regulations. This would be a significant hardship because the applicant has completed her Diploma of Nursing and has been accepted to enrol in a Bachelor of Nursing, which is commencing within the next month. She would be unlikely to be able to commence this course and would need to return to Nigeria. The delegate discounted these matters on the basis that this was an intended consequence of cancellation. While we accept this, the Procedural Instruction specifically raises this matter as a relevant consideration in cancellation cases and to give it no weigh would be contrary to Department policy. As such, the mandatory consequences of the cancellation and the hardship this would cause would have been matters that we would have found weighed against cancellation.
Conclusion
We find that the ground so cancel the applicant’s visa under s.116(1)(g) is not established. Even if we had been satisfied the ground was established, we would have concluded that the applicant’s Student (Temporary) (Class TU) Subclass 500 visa should not be cancelled in this case because there are compelling reasons why the discretion should be exercised in the applicant’s favour.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Student (Temporary) (Class TU) Subclass 500 visa.
The Tribunal has no jurisdiction with respect to the second named applicant.
Jan Redfern
Deputy President

Dr Colin Huntly
Member