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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2019] AATA 327
Decision Date: 13 February 2019

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Mrs Igbolekwu, a Nigerian citizen whose Subclass 500 Student visa was subject to cancellation. The dispute arose after a delegate of the Minister issued a notice of intention to consider cancellation, alleging that the visa had been obtained as a result of fraudulent conduct by a departmental employee. The delegate suspected that the applicant's visa would not have been granted without this improper conduct.

The Tribunal was required to determine whether the ground for cancellation under section 116(1)(g) of the *Migration Act 1958* (Cth), as prescribed by regulation 2.43(1)(o) of the *Migration Regulations 1994* (Cth), was established. This involved assessing whether there was sufficient evidence to support the delegate's reasonable suspicion of fraudulent conduct and, crucially, whether there was a causal connection between that suspected conduct and the granting of the applicant's visa.

The Tribunal reasoned that the cancellation of a visa, particularly when the holder has commenced studies and faces significant consequences if unable to complete them, requires factual findings based on logical and probative material, not speculation. The applicant provided detailed and credible evidence regarding her qualifications, employment history, and the circumstances of her visa application, denying any involvement in or knowledge of fraudulent conduct. The Tribunal found no evidence that the documents submitted by the applicant were fraudulent or suspicious, and noted that the alleged fraudulent conduct by a departmental employee was not sufficiently linked to the actual granting of the visa. Consequently, the Tribunal concluded that the ground for cancellation was not established.

The Tribunal set aside the decision to cancel Mrs Igbolekwu's visa and substituted a decision not to cancel it. The Tribunal noted that even if the ground for cancellation had been established, there were compelling reasons to exercise discretion in the applicant's favour due to the significant hardship she would face.

Orders

Orders of the court

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Background

Background to the litigation

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.

Evidence

Evidence Before The Court

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.

Decision

Reasons for decision

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 RedfernDeputy PresidentDr Colin HuntlyMember

Ratio Decidendi

Legal Principle Established

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