Nnadi (Migration)

[2019] AATA 6329

Nnadi (Migration) [2019] AATA 6329 (7 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Grace Nneka Nnadi
Mr Anthony Okechukwu Maduike

CASE NUMBER:  1725040

HOME AFFAIRS REFERENCE:                BCC2017/2968942

MEMBER:Rosa Gagliardi

DATE:7 November 2019

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.

The Tribunal has no jurisdiction with respect to the second named applicant.

Statement made on 07 November 2019 at 2:30pm

CATCHWORDS
MIGRATION – Cancellation –Student (Temporary) (Class TU) visa – Subclass 500 visa – visas were granted as a result of suspected fraudulent conduct – strong performance in her education – genuine temporary entrant requirements met– no direct link between the allegedly corrupt Departmental officer and the grant of the visa to applicant– decision under review set aside

LEGISLATION
Migration Act 1958, ss116, 140, 189, 348
Migration Regulations 1994 (Cth), r 2.43

CASES
Tien & Ors v MIMA (1998) 89 FCR 80
Patel v Minister for Immigration and Border Protection [2016] FCA 165
Rani & Ors v MIMA (1997) 80 FCR 379
Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 12 October 2017 made by a delegate of the Minister for Immigration and Border Protection to cancel the first named applicant’s (the applicant) Subclass 500 (Student) visa under s.116 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa under s.116(1)(g) of the Act on 12 October 2017 on the basis that the applicant had enlivened regulation 2.43(1)(o) because the delegate reasonably suspected that the visa had been “obtained as a result of the fraudulent conduct of any person”. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. 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 first named applicant. The second named applicant’s 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: see Rani & Ors v MIMA (1997) 80 FCR 379 at 385, 393, 400; Tien & Ors v MIMA (1998) 89 FCR 80 at 96. 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.

4. The first-named visa holder, Ms Nnadi, appeared before the Tribunal on 21 August 2019 to give evidence and present arguments. Unfortunately, the primary visa holder’s spouse,

   
   

   Mr Anthony Okechukwu Maduike, has since passed away in Australia.  The Tribunal also took evidence from a relative of Ms Nnadi over the phone. The Tribunal hearing was conducted with the assistance of an interpreter in the Igbo and English languages.

5. Ms Nnadi was represented in relation to the review by her registered migration agent. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Background

7. The visa holder is a 30 year old National Nigerian, from Imo State, who is a widow and had been married to the second named visa applicant who died in Australia. 

8. Ms Nnadi’s first and only arrival in Australia was on 26 March 2017 holding a Student (Temporary) (Class TU) Subclass 500 visa.  This student visa was granted to Ms Nnadi on her enrolment in a Diploma of Leadership and Management and Advanced Diploma of Leadership and Management.  This student visa was valid until 4 August 2021.  Ms Nnadi included her husband, Mr Anthony Maduike, in her student visa application and he was also granted a dependent student visa.  He too arrived in Australia on 26 March 2017.

9. Alerts in relation to Ms Nnadi’s application were raised by the departmental investigations into the circumstances leading to the grant of Ms Nnadi and her dependent’s student visas. It was considered by the delegate that a Departmentally employed officer may have acted improperly to grant the visas and it appeared that the visas were granted as a result of suspected fraudulent conduct. Accordingly, Ms Nnadi’s visa was cancelled and that of her husband’s was cancelled consequentially under section 140 of the Act.

10. This resulted in Ms Nnadi and Mr Maduike’s being Unlawful Non-Citizens in the community and they were detained pursuant to section 189 of the Act before being granted a Bridging visa to remain in the community while Ms Nnadi was seeking review of the cancellations at the Administrative Appeals Tribunal.  At that time a delegate was satisfied that Ms Nnadi and her spouse would abide by their Bridging visa conditions and accepted Ms Nnadi’s reassurances that they would return to Nigeria were they to be unsuccessful on review.

11. It was after Ms Nnadi and Mr Maduike were released from detention on the Bridging visas that Mr Maduike passed away.

    CONSIDERATION OF CLAIMS AND EVIDENCE

12. 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, to this case, these include the ground set out in s.116(1)(g). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

    Does the ground for cancellation exist?

    s.116(1)(g) - prescribed ground

13. A visa may be cancelled under s.116(1)(g) if the Minister is satisfied a prescribed ground for cancelling the visa applies to the applicant. The prescribed grounds for cancellation are set out in r.2.43 of the Migration Regulations 1994 (the Regulations). In the present case, the ground in r.2.43(1)(o) is relevant. Regulation 2.43(1)(o) allows the Minister or his delegate to cancel a visa if he reasonably suspects that the visa has been obtained as a result of fraudulent conduct of any person. The fraudulent conduct does not have to be confined to the visa holder.

    Evidence and reasoning for the cancellation by the delegate

14. On 13 February 2017, Ms Nnadi lodged a student visa application electronically via the Department’s online processing system.  Mrs Nnadi was granted a Class TU subclass 500 Student – Vocational Education visa on 23 February 2017 by an officer of the Department’s post in Pretoria, South Africa.

15. Departmental records indicate that Ms Nnadi arrived in Australia as the holder of the Class TU subclass 500 Student – Vocational Education visa on 26 March 2017.

16. Broadly, Departmental investigations into the circumstances surrounding the grant of

    
    

    Ms Nnadi’s Class TU subclass 500 Student – Vocational Education visa led the Department to conclude that a Departmental officer ‘may’ have acted improperly to grant the visa and that the visa was granted as a result of reasonably suspected fraudulent conduct [Tribunal emphasis]. 

17. The Tribunal is unable to provide the detailed nature of the fraud conducted by an immigration official/s in the Australian High Commission in Pretoria, partly because it has not been provided with the entirety of the investigative reports, however, the delegate relied on a number of reports in relation to an investigation undertaken by the Department about alleged misconduct by such officials.  It is important to note that none of these reports refer in anyway directly to Ms Nnadi and her late husband.

18. According to a document provided to the Tribunal “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 Departmental officer working at the Australian High Commission in Pretoria.  This led to a joint investigation with the Australian Commission for Law Enforcement Integrity (ACLEI).  Again, the Tribunal has found little evidence in these reports that would link Ms Nnadi and her husband facilitating any fraudulent conduct by the relevant Departmental officer.

19. Some of the allegations involved officials possibly knowingly granting visas for personal financial gain.  The features of this caseload, including that of the applicant which attracted suspicion, involved cases being decided expeditiously without the required scrutiny and verification.  Specifically, the alleged conduct by the officials in the Australian High Commission in Pretoria involved Department officers ‘bypassing’ the mandatory allocation of the grant of visas to Nigerian applicants, who were identified as high risk on the basis of their nationality, and without following the ‘otherwise rigorous assessment’ process that would have been applied to Nigerian applicants as part of the Department’s risk profiling.  The processes involved more in depth assessments which included a direction to ‘check employment and education documents for any evidence of fraud’ as specified in ‘Student Visa Assessment Methodology’, attached to the Visa Cancellation Referral Report.  It is alleged that funds were paid to these Departmental officers by third parties who were associated with Nigerian students at the Australian colleges referred to in the report.

20. Attached to the Visa Cancellation Referral Report is a report titled, ‘Investigation Report LES Misconduct’ which summarises the investigation undertaken and analyses 13 applications of Nigerian students that were approved by the officers involved in the alleged misconduct.

21. Ms Nnadi’s application is one of a group of 21 Nigerian student applications processed in the period of February, March and April 2017, identified by the Department as being fraudulently processed because they had been processed by the Departmental officer subject of misconduct allegations, and had been allocated outside the usual Department case management system.  Other deficiencies identified include that the visas were unusually rapidly processed, that is, between 2 and 13 days.  The applicant’s visa was processed within this timeframe, although the Tribunal does not have any information before it to indicate the degree to which Ms Nnadi’s visa was processed outside the ‘normal’ processing times, and indeed the Tribunal is not aware as to what such normal timeframes might be. 

22. In the case of Ms Nnadi, as put to her at hearing, the other issue of concern was that the alleged misconduct by the Departmental officer was that he/she ‘failed to verify his (sic) claimed employment and education’.

23. The delegate referred to the findings of the Federal Court of Australia in Patel v Minister for Immigration and Border Protection [2016] FCA 165 wherein it was reasoned that it is not necessary to demonstrate that the visa holder herself was involved in the fraudulent conduct to consider cancellation against the visa holder.

24. The delegate on the basis of the information above, held a reasonable suspicion that

    
    

    Ms Nnadi’s visa was obtained as a result of fraudulent conduct by any person (in this case the Department), and there appeared to be grounds for cancellation of Ms Nnadi’s Class TU subclass 500 Student – Vocational Education visa under section 116(1)(g) of the Act as a prescribed ground applied to her - regulation 2.43(1)(o).

    TRIBUNAL’S REASONINGS AND FINDINGS

25. In a submission by Ms Nnadi’s previous migration agent it was argued that the grounds for cancellation had not been made out and did not exist, contending that the phrase, “fraudulent conduct of any person” does not include that of the Minister’s delegate, acting in his or her lawful mandate as an anonymous decision maker, completely unknown to an applicant and exercising a power to grant or refuse a visa, at a material time.  The Tribunal has considered this proposition but is not persuaded that it was the intent of the legislators that fraud by an officer of the Department was to be excluded from the meaning of “any person”, otherwise provision for the exception would have been made.  The Tribunal therefore rejects this reasoning and is not satisfied that the grounds for cancellation have not been made out on this basis.  The Tribunal has adopted instead an approach consistent with other decisions made by the Tribunal which focus on the strength of the evidence before it in terms of finding whether the visa was obtained as a result of fraudulent conduct.

26. In deciding whether the ground for cancellation is made out, it is also appropriate for the Tribunal to have regard to the nature of the allegations and the gravity of the consequences.  Relevant to the facts of this case, the cancellation of a visa where the visa holder has partly completed a vocational qualification and may not have the opportunity to reapply, return and complete the qualification has significant consequences[1].  Factual findings are therefore required to be based on rigorous analysis, probative material and not simply on speculation or a mere hunch that the visa has been obtained as a result of fraudulent conduct of any person.[2] 

    [1] See decision by Deputy President and Division Head Jan Redfern and Dr Colin Huntly, 17 May 2018, Ms Ogochukwu Concilia Odinkaeze – Decision no: 1725482.

    [2] Sun v Minister for Immigration and Border Protection 2016 [FCAFC].

27. While applying civil law concepts such as ‘onus of proof’ and ‘standard of proof’ is not generally appropriate in administrative decision-making, where the of certain facts forms the basis for the exercise of a statutory power, those facts must be established on the material available before the power can be exercised.  The decision-maker is therefore required to be satisfied about the existence of the facts before exercising the power.  As such, the obligation is on the decision maker to be satisfied and not on the former visa holder to establish the facts or grounds do not exist (see Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235).[3]

    [3] Decision by Deputy President and Division Head Jan Redfern and Dr Colin Huntly, 17 May 2018, Ms Ogochukwu Concilia Odinkaeze – Decision no: 1725482.

28. As per Dixon J in Briginshaw v Briginshaw, “reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved.  The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal.  In such matters ‘reasonable satisfaction’ should not be produced by inexact proofs, indefinite testimony, or indirect inferences”.[4]

    [4] Briginshaw v Briginshaw, HCA 34 (1938) 60 CLR.

29. As highlighted by the current migration agent in his submission of 9 August 2019, it is apposite to inquire into (i) what constitutes “Fraudulent conduct” and the meaning of “reasonably suspects”.  As the meaning of fraudulent conduct is not set out in the regulations, the Tribunal takes the meaning in the ordinary sense and as set out in the Macquarie Dictionary, being: “Deceit, trickery, sharp practice, or breach of confidence, by which it is sought to gain some unfair or dishonest advantage”.  This is consistent with the meaning adopted by PAM3: “Advantage 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”. 

30. The term “reasonably suspects” is also not defined in the Act or the Regulations, however, the importance of suspicion being based on a factual basis has been judicially considered in the context of r.2.43(1)(o) and s.189 of the Act. Consistent and verifiable established facts might therefore give rise to a reasonable suspicion.

31. Regulation 2.43(1)(o) requires the decision-maker to reasonably suspect that the visa was obtained as a result of fraudulent conduct, suggesting a causal connection is required.  The task for the Tribunal is therefore to assess whether Ms Nnadi’s visa was granted as a direct result of fraudulent conduct by any person.

    
    
    The but for test and the decision in Odinkaeze

32. The Tribunal notes that it has been unable to find evidence of why the delegate had a reasonable suspicion that fraudulent conduct had occurred with respect to the grant of

    
    

    Ms Nnadi’s visa specifically, except the vague reasons that her application was caught up with a batch being dealt with by a Departmental officer alleged to have engaged in misconduct over a cohort of cases generally.  The delegate in cancelling the visa did not dispute that Ms Nnadi met the criteria for the visa but considered that even though she did meet the criteria, this did not mean that the grounds for cancellation were not enlivened.  In its decision in Odinkaeze, the Tribunal found that “to have a reasonable suspicion that a visa was granted ‘as a result of the fraudulent conduct’, there would need to be some evidence the visa would not have been granted but for the fraud”.[5]

    [5] See decision by Deputy President and Division Head Jan Redfern and Dr Colin Huntly, 17 May 2018, Ms Ogochukwu Concilia Odinkaeze – Decision no: 1725482.

33. This approach was expounded in another decision of the Tribunal in Mbelu (Decision: 1725196):

    In Odinkaeze the Tribunal was not satisfied there was sufficient evidence to found a reasonable suspicion that the applicant’s visa was obtained as a result of the fraud of the allegedly corrupt Departmental officer.  While there was evidence of the fraudulent conduct by the Department officer in respect of the grant of student visas to Nigerian nationals more generally, the Tribunal was not satisfied on the basis of the evidence that there was a link between the fraudulent conduct as described more generally in the Investigation Reports LES Misconduct and the granting of the visa of Ms Odinkaeze.

34. The ‘but for’ approach indicates that the grounds for cancellation do not arise if it cannot be shown through probative evidence that the visa was granted as a direct result of fraudulent conduct by anybody.  Departmental policy PAM3 also 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”.

35. The Tribunal has, therefore, examined whether had Ms Nnadi’s application been processed by an officer who was not tainted with maladministration, she would have been granted the visa on the basis of the information provided by her regarding her education and work experience, which is the only basis upon which the visa was cancelled.  Whether a lack of verification of employment and education is enough to make a factual finding that the visa was granted to Ms Nnadi as a result of fraudulent conduct is questionable.  The Department has not submitted any credible evidence to demonstrate that the verification had not occurred and what such verification might have entailed.  The decision in Odinkaeze states:

    Information that a Department Officer did not verify employment or educational records would not be sufficient if there is evidence to suggest those records are genuine and can be verified.  If the records are genuine and the application has been processed in accordance with the Student visa methodology, her application would have been granted.

    Requirements for the grant of a Student (Temporary) (Class TU) Subclass 500 visa

36. The Tribunal sets out its reasons as to why it considers that taken out of the context of circumstances surrounding the grant of Ms Nnadi’s visa, she would have been granted the visa.

1. 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 criteria and secondary criteria.

2. 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)be a genuine applicant for entry and stay as a student;

   (3)provide evidence of English language proficiency, if required to do so by the Minister;

   (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)provide evidence of adequate arrangements for health insurance during the period of their intended stay in Australia;

   (6)met certain age requirements, if the visa applicant is a school student;

   (7)satisfy applicable Public Interest Criteria (PIC); and

   (8)        

   satisfy special return criteria.

   
   
   

3. Below is evidence, but not limited to, submitted to the Department to demonstrate that

   
   

   Ms Nnadi met the requirements for the grant of a Student subclass 500 visa (all sighted by the Tribunal):

   ·Health evidence;

   ·NECO result;

   ·Intended study evidence (Letter of Offer and COEs);

   ·Documents relating to her education and employment;

   ·Evidence of  her identity (international passport);

   ·Evidence of relationship to her spouse (Marriage Certificate);

   ·Account statement showing genuine access to funds to meet course and living expenses;

   ·International English Test System (IELTS) results, 21 January 2017 (Ref:20165); and

   ·OSHC insurance.

4. The Tribunal has also sighted evidence of a Conditional Letter of Offer for Ms Nnadi to undertake an Advanced Diploma of Leadership and Management on the basis that she is successful in achieving the required English language entry level required by the Australian Academy of Commerce. 

5. Ms Nnadi received financial support from her late husband’s two brothers and a sister in Australia for her to be able to study here.  Phone evidence was received to this effect by the Tribunal.  Her husband’s relatives had pooled their resources because they had concerns about the economy generally in Nigeria and thought that Ms Nnadi undertaking training at an international level would assist her and her husband go back and establish their own business, and to ensure they would have their education to fall back on.

6. Currently, Ms Nnadi is several units from completing her Diploma of Leadership and Management in February 2020, after which she aspires to undertake the Advanced Diploma of Leadership and Management, for which she has also applied.  The Australian Academy of Commerce has provided a letter for Ms Nnadi confirming that she had successfully completed 8 units out of 12, and that 12 units were required to achieve the qualification (Diploma).  The Tribunal has sighted evidence that previously her attendance had been 100% but that due to her husband’s illness it had dropped to 88.39% more recently.

7. Ms Nnadi gave evidence at hearing that she had held off sending her late husband’s body to Nigeria to be able to give evidence at a hearing but ultimately her and her husband’s family’s resources were exhausted, and his remains were sent back to Nigeria where it was expected she would go to undertake the mourning traditions, and then return to complete her studies.

8. The Tribunal has had regard to Ms Nnadi’s education in Nigeria and notes that her grades were solid.  The Department has not since the cancellation made any findings to the effect that this document is fraudulent.  Further, Ms Nnadi’s strong performance in her education in Australia, would indicate that her claims regarding her previous education should not be discredited without evidence.  Clearly, had Ms Nnadi’s academic record in Australia been poor, the Tribunal may have taken a different approach.

9. In terms of the work undertaken in Nigeria by Ms Nnadi, she has not in any way embellished her claims.  At hearing she gave consistent and detailed evidence about working at a provision store (Chibest) for four years, selling milk and juice as a wholesaler.  Again, the Department after the cancellation has not submitted any evidence that Ms Nnadi had not worked at Chibest, and that her claims had been falsified.  From the detailed knowledge provided by Ms Nnadi at hearing the Tribunal is prepared to accept that she worked in a modest position in a provision store as claimed, even though the documentary evidence submitted to support the claims is not extensive.  

10. On the basis of the evidence the Tribunal finds that Ms Nnadi was a genuine temporary entrant and would have met the requirements for the grant of a Student (Temporary) (Class TU) Subclass 500 visa, regardless of who was processing it.

Conclusion

1. In this case, the Tribunal has found that the grounds upon which the cancellation was made were not supported in a convincing manner by direct and purposive evidence.  In short, the visa was cancelled because Ms Nnadi’s case happened to be one of a batch of cases dealt with by an officer who had acted inappropriately in conducting their employ over a cohort of cases.  Indeed, the Tribunal has not been able to find any direct link between the allegedly corrupt Departmental officer and the grant of the visa to Ms Nnadi.  The fact that Ms Nnadi’s application came to be processed by the officer in question does not amount to evidence upon which a reasonable suspicion that Ms Nnadi’s visa was obtained as a result of fraudulent conduct, can be founded.

1. For these all these reasons, the Tribunal is not satisfied that the ground for cancellation in s.116(1)(g) exists. It follows that the power to cancel the applicant’s visa does not arise.

   DECISION

2. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 500 (Student) visa.

3. The Tribunal has no jurisdiction with respect to the second named applicant.

   Rosa Gagliardi
   Member