Igbolekwu (Migration)

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.