MBELU (Migration)

The applicant, Mr. Mbelu, a Nigerian citizen, sought judicial review of the cancellation of his Subclass 500 Student visa. The visa was cancelled under section 116(1)(g) of the *Migration Act 1958* (Cth) on the prescribed ground in regulation 2.43(1)(o) of the *Migration Regulations 1994* (Cth), which relates to a visa being obtained as a result of fraudulent conduct. The dispute centred on whether the Department had a reasonable suspicion that Mr. Mbelu's visa was obtained due to fraudulent conduct, and whether the power to cancel the visa was appropriately exercised. The matter was heard by Deputy Jan Redfern P.

The court was required to determine two primary legal issues. Firstly, whether the ground for cancellation, as prescribed by regulation 2.43(1)(o), was established. This involved considering the meaning of "reasonably suspects" and whether the evidence supported a suspicion that the visa was obtained as a result of fraudulent conduct. Secondly, the court had to consider whether, assuming the ground for cancellation was established, the exercise of the power to cancel the visa was appropriate, taking into account factors such as hardship, the circumstances of the ground arising, and the applicant's behaviour.

The court applied established legal principles regarding the formation of a reasonable suspicion. It was noted that a reasonable suspicion is sufficient, and it must be founded on objective circumstances rather than mere surmise. The factual basis required for a reasonable suspicion is less than that for a belief, and the suspicion must be open to the decision-maker on the facts. In this case, the Department's investigation revealed information suggesting a departmental employee may have acted improperly in granting the visa, and that the visa would likely not have been granted without this suspected conduct. The court found that this provided a sufficient factual basis to ground a reasonable suspicion that the visa had been obtained as a result of fraudulent conduct. The court also considered the applicant's submissions regarding the consequences of cancellation, including financial hardship and the inability to reapply onshore, but ultimately affirmed the decision to cancel the visa.