Odinkaeze (Migration) - [2018] AATA 1295

Odinkaeze (Migration) [2018] AATA 1295 (17 May 2018)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Ms Ogochukwu Concilia Odinkaeze
CASE NUMBER:  1725482
DIBP REFERENCE:  BCC2017/2968973
MEMBERS:Jan Redfern (Presiding)

Dr Colin Huntly
DATE:17 May 2018
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.

Statement made on 17 May 2018 at 1:14PM

This is an application for review of a decision dated 11 October 2017 made by a delegate of the Minister for Immigration to cancel the applicant’s 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 she 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.
The applicant, Ms Ogochukwu Concilia Odinkaeze, appeared before the Tribunal on 18 and 19 April 2018 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s sponsor and cousin who resides in Australia, Dr Pedus Chidiebere Eweama. The Tribunal hearing was conducted in the English language, although an interpreter in the Igbo language was available to assist if required. The applicant did not require an interpreter and gave evidence without any apparent difficulty during the hearing. She was represented by her registered migration agent, who also provided documents and written submissions prior to the hearing.
We have concluded that the decision to cancel Ms Odinkaeze’s visa should be set aside because we are not satisfied that the ground for cancellation is established. In summary, while we are satisfied there is sufficient evidence to establish a reasonable suspicion of fraud by a Department officer in relation to the processing of certain student visas for Nigerian citizens, we are not satisfied there is sufficient evidence to establish a reasonable suspicion that this applicant’s visa was obtained as a result of the fraud identified. Our reasons follow.
RELEVANT LAW AND LEGAL PRINCIPLES
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.
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);[1]
(2)be a genuine applicant for entry and stay as a student;[2]
(3)provide evidence of English language proficiency, if required to do so by the Minister;[3]
(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;[4]

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: [2018] AATA 1295
Decision Date: 17 May 2018

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the case of Ms Odinkaeze, a Nigerian national whose Subclass 500 Student visa was cancelled under section 116(1)(g) of the *Migration Act 1958*. The cancellation was based on a suspicion that the visa had been obtained as a result of fraudulent conduct, as prescribed by regulation 2.43(1)(o) of the *Migration Regulations 1994*. Ms Odinkaeze had applied for the visa to study a Diploma of Nursing in Australia and had provided supporting documentation regarding her financial capacity, intended course of study, education, employment, and English language proficiency.

The primary legal issue before the Tribunal was whether the prescribed ground for cancellation under regulation 2.43(1)(o) was established. This required the Tribunal to determine if there was a reasonable suspicion that Ms Odinkaeze's visa was obtained as a result of fraudulent conduct. The Tribunal was required to consider the meaning of "reasonably suspects" and the necessity of a causal connection between any fraudulent conduct and the granting of the visa. The Tribunal also had to assess whether the evidence presented was sufficient to ground such a suspicion, distinguishing between suspicion and belief, and ensuring the suspicion was based on objective circumstances rather than mere conjecture.

The Tribunal reasoned that while there was evidence suggesting potential fraud by Department officers in Pretoria concerning the processing of student visas for Nigerian nationals, and that Ms Odinkaeze's application may have been processed by an officer implicated in such conduct, there was no evidence that Ms Odinkaeze herself was aware of or involved in any fraudulent activity. Crucially, the Tribunal found that the delegate had failed to establish a causal connection between the alleged fraudulent conduct and the granting of Ms Odinkaeze's visa. The Tribunal noted that for the ground to be established, there needed to be evidence that the visa would not have been granted but for the fraud. Despite conducting its own enquiries, which tended to suggest Ms Odinkaeze's supporting documents were genuine, the Tribunal was not satisfied that the necessary causal link existed. The Tribunal concluded that the circumstances surrounding the visa grant were suspicious, but mere suspicion without evidence of a causal connection was insufficient to establish the ground for cancellation.

Consequently, the Tribunal set aside the decision to cancel Ms Odinkaeze's visa and substituted a decision not to cancel her Subclass 500 (Student) visa.

Orders

Orders of the court

Full text does not contain this section.

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 partly completed a vocational qualification and may not have the opportunity to reapply, return 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 Ms Odinkaeze, a 30 year old Nigerian national, made an application for a Class TU Subclass 500 Student – Vocational Education visa on 24 February 2017 to study a Diploma of Nursing. She made the application online and lodged supporting documentation including evidence of financial capacity, evidence of her intended course of study, documents relating to her education and employment, evidence of her identity, International English Test System (IELTS) results, insurance details and a statement addressing the criteria for a Subclass 500 visa that she was a ‘genuine temporary entrant’. Attached to her application was a letter from Veta Hospitals Limited dated 20 February 2017 stating that Ms Odinkaeze had been employed with the hospital since 2012 as a Nurse III (Senior Nursing Assistant). It was noted that Veta Hospital was a ‘medium sized medical establishment’ and was ‘constantly in need of nurses who have the pre-requisite knowledge and attitude’. The letter confirmed that Ms Odinkaeze was guaranteed employment on her return after the successful completion of her nursing training in Australia. Ms Odinkaeze also provided the following documents in support of her claims about her education:(1)a copy of her West African Senior School Certificate from the West African Examinations Council dated June 2006;(2)a copy of a Diploma in Community Health conferred by the Community Health Practitioners Registration Board of Nigeria dated 1 August 2011 noting Ms Odinkaeze had successfully passed examinations held in December 2010; and(3)an official transcript from the School of Health Technology Okporo - Orlu, IMO State for the period 2007 to 2010 recording Ms Odinkaeze’s results for the Diploma in Community Health. Ms Odinkaeze’s student visa was granted on 7 March 2017. The visa is due to expire on 5 September 2019. Ms Odinkaeze arrived in Australia on 6 April 2017. She enrolled in and successfully completed a Technical and Further Education (TAFE) course in ‘English for Academic Purposes Level 4 (Upper-Intermediate)’ and the ‘IELTS Plus Level 5 (Advance)’ course in the period July to December 2017. According to certificates provided by Ms Odinkaeze, she obtained ‘A’ grades for each of the skills nominated in each course. She paid approximately $6,000 for both courses. After completing these courses, Ms Odinkaeze enrolled in a Diploma of Nursing through TAFE with the commencement date of 29 January 2018. The course ends on 5 July 2019. The tuition fees for the course are $25,230, of which Ms Odinkaeze has paid approximately $8,000 for the first semester. Evidence of Ms Odinkaeze’s enrolment and the fees paid was provided at the hearing. The fact Ms Odinkaeze is enrolled in her course of study, has commenced the course and paid the necessary fees for the course to date is not in dispute.

Evidence

Evidence Before The Court

Ms Odinkaeze responded to the notice to the effect that she was not involved in any corrupt conduct by a Department officer and that she had provided all of the information required to meet the criteria. It was responsibility of the Department to ensure there was integrity in the process and that all of the necessary information, including information relating to her employment and education, had been provided. This information met the relevant criteria and the fact that it was not checked by the Department officer was not known to her, nor was it her fault. She had applied to come to Australia on a student visa to conduct her studies and had expended considerable funds in undertaking and paying for her courses. Ms Odinkaeze’s intention was to come to Australia to study and to return to Nigeria as a nurse. Ms Odinkaeze also provided the documentation she had previously provided to the Department in support of her visa application together with a statutory declaration setting out her circumstances.EVIDENCE At the hearing, Ms Odinkaeze said that she had made the application online with the assistance of her cousin, Dr Eweama. She did not know any Department officers in Pretoria and had not used an education agent. She applied to TAFE with the assistance of Dr Eweama. Ms Odinkaeze said she was not aware of, nor was she involved in, any fraudulent or corrupt conduct in obtaining her visa. She had not been asked to provide any further information in relation to employment or education qualifications by the Department but if she had been asked she would have been able to provide this information. The details of her former employers and her education providers were available in the supporting documentation. She said that she had paid over $15,000 towards her studies, completed the English course and was in the middle of the first semester of her Diploma of Nursing. She had found the Diploma difficult because of stress and uncertainty since her visa had been cancelled but she was coping. She had many sleepless nights since the cancellation. As part of the Diploma, she is required to undertake a placement in a hospital or age-care facility and this component of the course commences in May 2018. This level of education was not available to her in Nigeria and she could not undertake the course from Nigeria because of the need to complete the practical onsite training. Ms Odinkaeze gave evidence about her work at the Veta Hospital. She said that she had worked at the hospital since 2012 as a nurse’s aide. The hospital had about 16 beds and provided both inpatient and outpatient services. There were two doctors, one being the owner and chief executive officer of the hospital, Dr I.O. Akpoveta. As a nurse’s aide it was her role to assist the registered nurses and mid-wives. The hospital undertook surgery and there was a cardiology and maternity unit. The hospital also operated an immunisation clinic where she was regularly assigned. Ms Odinkaeze said that she worked both morning and night shifts. She gave evidence that it had been her desire for many years to become a registered nurse and she wanted to complete her course in Australia.

Decision

Reasons for decision

For 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 The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 500 (Student) visa.Jan RedfernDeputy PresidentDr Colin HuntlyMember

Ratio Decidendi

Legal Principle Established

While there was no evidence to the contrary contained in the Department file or referred to in the decision record, the Tribunal made further enquiries about Ms Odinkaeze’s employment and education qualifications which revealed the following:(1)There are multiple references to the Veta Hospital Limited or the Veta Hospitals Limited on the Internet which appear to confirm its existence and that it is located at the address referred to on the employment letter, being 1 Veta Close, Lagos. For instance, the hospital is included in a list of hospitals for Lagos by Healthcare International Nigeria Ltd[11] and it is listed as a provider on the websites of a number of health insurance companies operating in Nigeria, such as Alphacare and VenusMedicare.[12](2)Dr I.O. Akpoveta, who is referred to on the letter of employment, is listed on the website of the Association of General and Private Medical Practitioners of Nigeria.[13](3)There are numerous references on the Internet to the School of Health Technology Okporo - Orlu, IMO State and the Community Health Practitioners Registration Board of Nigeria, with the website for the Registration Board recording the School of Health Technology - Orlu, IMO State as an accredited institution.[14](4)The West African Examinations Council, which issued Ms Odinkaeze’s School Certificate, is an examination board that conducts the West African Senior School Certificate and its website is located at documents provided appeared on their face to be genuine with certifications and insignias or letterheads that were consistent with those listed on the relevant the websites. CONSIDERATION[11] Healthcare International Nigeria Ltd, Hospital List (2014) < Venus Medicare Provider Network, Medicare Provider Network Search (2018) < Association of General and Private Medical Practitioners of Nigeria (AGPMPN) Lagos State, Member Profile Community Health Practitioners Registration Board of Nigeria, List of Accredited Institutions (2017) the ground for cancellation exist?The Tribunal must be satisfied that a prescribed ground for cancellation exists. The prescribed ground identified is the ground set out in r.2.43(1)(o) which requires that the decision maker must reasonably suspect that the visa, which is the subject of cancellation, has been obtained as a result of the fraudulent conduct of any person.The term reasonably suspects is not defined in the Act or the Regulations but its meaning has been judicially considered in the context of r.2.43(1)(o) and s.189 of the Act. The following is a summary of the key principles that can be drawn from these authorities:(1)It is not necessary for the decision maker to be satisfied that the visa was obtained by fraud, a reasonable suspicion is sufficient.[15] Nor is it necessary for the Tribunal to been satisfied that the visa holder has been involved in fraudulent conduct.[16](2)A reasonable suspicion must be founded on objective circumstances, which are more than mere surmise or conjecture.[17] The factual foundation required to ground a reasonable suspicion is less than that required for a belief.[18] Whether a different decision maker would have formed the same state of suspicion is irrelevant. What matters is that the state of reasonable suspicion reached by the Tribunal is open to it on the facts.[19](3)The evidence must be sufficient to induce a suspicion of the kind a reasonable person may apprehend.[20] It does not require ‘the evidence be such that the Tribunal’s reasonable suspicion was of facts established on the balance of probabilities.’[21](4)Whether a suspicion is reasonable is a question of fact to be determined in the light of all surrounding circumstances applicable to the particular case.[22](5)The required state of mind is suspicion, not belief, so that the facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown.[23][15] Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [22] (per Bromberg J).[16] Ibid at [23].[17] Sun v Minister for Immigration and Border Protection [2016] FCAFC 52 at [86] (per Flick and Rangiah JJ), citing George v Rockett (1990) 170 CLR 104 at 115-6.[18] Sun v Minister for Immigration and Border Protection at [48] (per Flick and Rangiah JJ).[19] Ibid at [48] (per Flick and Rangiah JJ).[20] Rani v Minister for Immigration and Border Protection [2015] FCCA 445 at [18] (per Judge Driver).[21] Ibid.[22] Guo v Commonwealth of Australia [2017] FCA 1355 at [44] (per Jagot J) and Patel v Minister for Immigration and Border Protection [2016] FCA 165 at [23].[23] Guo v Commonwealth of Australia [2017] FCA 1355 at [35].Fraudulent conduct is not defined in the Act or Regulations. The ordinary English meaning of fraud as set out in the Macquarie Dictionary (online edition) is:[D]eceit, trickery, sharp practice, or breach of confidence, by which it is sought to gain some unfair or dishonest advantage.This is consistent with the PAM3 which also adopts the Macquarie Dictionary definition and states that fraudulent conduct is an:[A]dvantage 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.[24][24] PAM3: Act – Compliance and Case Resolution – Cancellation – General visa cancellation powers (s109, s116, s128 & s140).Regulation 2.43(1)(o) requires that the decision maker must reasonably suspect that the visa has been obtained as a result of the fraudulent conduct. This phase is not defined in the Act or Regulations but adopting the plain and ordinary meaning of the phase would suggest that a ‘causal connection’ is required. That is, but for the fraud the visa applicant would not have obtained the visa. This is consistent with departmental policy. Relevantly, the PAM3 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.[25] [Emphasis added][25] Ibid.Applying these principles to the facts of this case and having regard to the observations of the Full Court of the Federal Court in Zhao and Sullivan about the approach that should be taken to fact finding in these types of cases, we find as follows:(1)There is evidence to support a finding that there is a reasonable suspicion of fraud by Department officers in Pretoria in relation to the granting of student visas to Nigerian nationals. We are satisfied about this on the basis of the information contained in the Visa Cancellation Referral Report and Investigation Report LES Misconduct.(2)There is also evidence that Ms Odinkaeze is a Nigerian national who made an application for a student visa in February 2017 which was processed by the Australian High Commission in Pretoria. We accept that Ms Odinkaeze’s application was identified as suspect because it was processed by one of the allegedly corrupt Department officers in Pretoria. We accept that her application was allocated to the allegedly corrupt Department officer and that this allocation ‘bypassed’ the usual case management processes in the Department.(3)There is no evidence that Ms Odinkaeze knew of the fraud and, without evidence to the contrary, we accept her evidence that she did not know and was not involved in any fraud. We also accept the evidence of Dr Eweama about this. However, we note that this is not critical to a finding under r.2.43(1)(o), although we accept it would be relevant to the exercise of the discretion to cancel the visa if the ground for cancellation is established.(4)The delegate stated that she had a reasonable suspicion Ms Odinkaeze’s visa was obtained as a result of fraudulent conduct, without stating the reasons why the reasonable suspicion arose in the circumstances of Ms Odinkaeze’s case. It is further stated that while it may be submitted that Ms Odinkaeze met the criteria, this had ‘no bearing’ on whether the visa was obtained as a result of fraudulent conduct. We disagree.(5)To have a reasonable suspicion Ms Odinkaeze’s 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. Information that the Department officer did not verify Ms Odinkaeze’s 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 Ms Odinkaeze’s application had been processed in accordance with the Student visa methodology, her application would have been granted. To conclude that the causal connection between the fraudulent conduct and the granting of the visa has no bearing on the question of whether there is a reasonable suspicion fails to recognise that the words ‘as a result of’ expressly provide for the need to point to some link. If there did not need to be any casual connection between the fraud and the granting of the visa, this would have the impact of punishing an applicant whose visa application would have been granted, regardless of the fraud. Given that knowledge of the fraud by the visa applicant is not necessary to establish the ground, this is unduly harsh and would serve no public policy purpose. In other words, the fact that a reasonable suspicion is enough to satisfy r.2.43(1)(o) does not remove or diminish the importance of there being a link between the fraudulent conduct and the granting of the visa, it simply informs the level of proof required. (6)Notwithstanding this, there is no evidence the Department officer failed to verify Ms Odinkaeze’s employment and education records. The ICSE records provided do not record any enquiries but there is no evidence that the absence of such a record means the enquiries were not made. Furthermore, there is no evidence before us to suggest that Ms Odinkaeze’s employment and education records are not genuine. Indeed there is evidence to the contrary, given the Tribunal’s own preliminary enquiries. While these enquiries do not establish that the records provided are genuine, the results of the enquiries tend to suggest they are. The onus is not on Ms Odinkaeze to establish her visa was not obtained as a result of the fraud. It is for the decision maker to have a reasonable suspicion of this based on the available evidence. The Tribunal, having assessed the available evidence and making its own enquiries, is not satisfied there is a causal connection between the granting of the visa and the fraudulent conduct in the circumstances of this case.(7)While the circumstances surrounding the granting of Ms Odinkaeze’s student visa are suspicious, there must be some evidence on which to base a suspicion of the necessary causal link. Mere surmise or conjecture simply because of the other cases is not sufficient to establish a reasonable suspicion. There could be many explanations for why Ms Odinkaeze’s visa was processed by the allegedly corrupt Department officer outside the usual case management process. For instance, some applications from the Nigerian cohort may have been chosen to disguise the corrupt practice with other applications.