Nnadi (Migration)

The Administrative Appeals Tribunal reviewed the decision to cancel the Student (Temporary) (Class TU) Subclass 500 visa held by Ms Nnadi, a Nigerian national. The visa had been granted to Ms Nnadi and her late husband, who was a dependent on her application. The cancellation was based on a suspicion that the visas were obtained as a result of fraudulent conduct by a Departmental officer.

The primary legal issue before the Tribunal was whether the ground for cancellation under regulation 2.43(1)(o) of the Migration Regulations 1994 was established. This regulation permits visa cancellation if the decision-maker reasonably suspects that the visa was obtained as a result of fraudulent conduct by any person, not necessarily the visa holder. The Tribunal was required to determine if there was a causal connection between the alleged fraudulent conduct and the grant of Ms Nnadi's visa.

The Tribunal reasoned that regulation 2.43(1)(o) requires a reasonable suspicion that the visa would not have been granted "but for" the fraudulent conduct. Applying the "but for" test, the Tribunal found insufficient evidence to establish a direct link between the alleged misconduct of a Departmental officer and the grant of Ms Nnadi's visa. While acknowledging that a cohort of visas granted by a particular officer were under investigation for suspected fraud, the Tribunal noted that the investigative reports did not directly implicate Ms Nnadi or her husband in facilitating any fraudulent conduct. The Tribunal concluded that the delegate had not provided credible evidence demonstrating that the visa would not have been granted had the application been processed without the alleged fraudulent conduct, particularly as Ms Nnadi met the substantive criteria for the visa.

Consequently, the Tribunal set aside the decision to cancel Ms Nnadi's visa.