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

CATCHWORDS

MIGRATION - Student (Temporary) (Class TU) Subclass 500 – cancellation under s.116(1)(g) of the Migration Act 1958 – whether the prescribed ground in r.2.43(1)(o) of the Migration Regulations 1994 applies – visa cancelled following investigation into the circumstances surrounding the grant – consideration of the expressions ‘reasonably suspects’, ‘as a result of’ and ‘fraudulent conduct’ – causal connection between the fraudulent conduct and the granting of the visa not established – ground for cancellation not established – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth), ss 116, 116(1)(g), 119, 189 375A, 496, 376, 359A

Migration Regulations 1994 (Cth), r 2.43(1) & Schedule 2, cl. 500.3, 500.111, 500.211, 500.212, 500.213. 500.214, 500.216, 500.217, 500.218, 500.611

Privacy Act 1988 (Cth)

CASES

Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577

George v Rockett (1990) 170 CLR 104
Guo v Commonwealth of Australia [2017] FCA 1355
Patel v Minister for Immigration and Border Protection [2016] FCA 165
Rani v Minister for Immigration and Border Protection [2015] FCCA 445

Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634

Shi v Migration Agents Registration Authority [2008] HCA 31

Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93

Sun v Minister for Immigration and Border Protection [2016] FCAFC 52

Zhao v Minister for Immigration & Multicultural Affairs [2000] FCA 1235

SECONDARY MATERIALS

Procedures Advice Manual – PAM3 - ‘General visa cancellation powers (s109, s116, s128 & s140)’

Procedures Advice Manual – PAM3 - ‘Migration Regulations – Schedules 2 Visa 500 – Student’

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. 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).

2. 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.

3. 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.

4. 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

5. 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.

6. 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]

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

   (6)met certain age requirements,[5] if the visa applicant is a school student;[6]

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

   (8)satisfy special return criteria.[8]

   [1] Migration Regulations 1994, cl.500.211.

   [2] Migration Regulations 1994, cl.500.212.

   [3] Migration Regulations 1994, cl.500.213.

   [4] Migration Regulations 1994, cl.500.214.

   [5] Migration Regulations 1994, cl.500.216.

   [6] Migration Regulations 1994, cl.500.111.

   [7]Migration Regulations 1994, cl.500.217. For example, PIC 4001 (Character), 4002 (Security requirement), 4003 (Foreign Minister requirements), 4004 (Debts to the Commonwealth),4005 (Health requirements), 4010, 4013 (Risk factor), 4014 (Risk factor), 4020 (Fraud), 4021 (Passport requirement) and 4019 (Values statement).

   [8] Migration Regulations 1994, cl.500.218. The relevant public interest criteria are PIC5001, 5002 and 5010.

7. 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. Relevant to this case, these include the ground set out in s.116(1)(g) which provides that the Minister may cancel a visa if he or she is satisfied that a ‘prescribed ground’ for cancelling a visa applies to the holder. Regulation 2.43(1) of the Regulations sets out the grounds prescribed for the purposes of s.116(1)(g) and includes the ground in r.2.43(1)(o) as follows:

   that the Minister reasonably suspects that the visa has been obtained as a result of the fraudulent conduct of any person.

8. If the Minister is considering cancelling a visa under s.116, he or she must notify the visa holder that there appear to be grounds for cancelling the visa and give particulars of those grounds and the information on which the grounds appear to exist. The Minister must also invite the holder to show within a specified time that those grounds do not exist or that there is a reason why the visa should not be cancelled: s.119 of the Act.

9. If satisfied that the ground for cancellation under s.116 is made out, the Minister has discretion whether to cancel the visa. The Act and Regulations do not specify any mandatory considerations that should be taken into account when exercising the discretion, nor has the Minister issued directions under s.499 about the factors to be considered. The Department of Home Affairs (the Department) has, however, issued government policy (Procedures Advice Manual - PAM3 - ‘General visa cancellation powers (s109, s116, s128 & s140)’) about the matters that may be relevant to consider when exercising the discretion. The matters include, for instance, the purpose of the visa holder’s travel and stay in Australia, hardship, the circumstances in which the ground of cancellation arose, any mandatory legal consequences and whether any international obligations would be breached as a result of the cancellation.

10. The Minister may delegate to a person any of the Minister’s powers under the Act: s.496 of the Act. The Minister has delegated the power under s.116 to certain officers of the Department. PAM3 - General visa cancellation powers (s109, s116, s128 & s140) provides guidance to decision makers in exercising the powers under s.116.

11. It is a long established principle that the Tribunal on review is considering the matter afresh based on the material before it and is not bound by the findings of the delegate.[9] It is also well established that the Tribunal should have regard to lawful government policy unless there are cogent reasons to the contrary.[10] The Tribunal has not identified any such reasons. For the reasons later outlined, it is not necessary for us to consider the discretion to cancel because we are not satisfied the ground to enliven the discretion under s.116(1)(g) is made out.

    [9] Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577, also referred to in Shi v Migration Agents Registration Authority [2008] HCA 31 at [98] (per Hayne and Heydon JJ).

    [10] Re Drake v Minister for Immigration and Ethnic Affairs (No 2) (1979) 2 ALD 634.

12. While it is well established that civil concepts such as ‘onus’ and ‘standard of proof’ are generally inappropriate in administrative decision-making, in cases where the existence of certain facts grounds the exercise of a statutory power, those facts must be established on the material available before the power can be exercised. In other words, the decision maker must be satisfied about the existence of the facts before exercising the power. In this respect, the obligation is on the decision maker to be so satisfied and not on the former visa holder to establish the facts or grounds do not exist (refer Zhao v MIMA [2000] FCA 1235 (French, Hill and Carr JJ) at [25] and [32]).

13. 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

14. 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’.

15. 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.

16. 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.

17. Ms Odinkaeze’s student visa was granted on 7 March 2017. The visa is due to expire on 5 September 2019.

18. 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.

19. The delegate relied on a number of reports in relation to an investigation undertaken into by the Department about alleged corrupt conduct by Department officers working at the Australian High Commission in Pretoria. Those reports were provided to the Tribunal, although not in their entirety. This is dealt with in greater detail later in the Tribunal’s reasons.

20. According to a document provided to the Tribunal headed ‘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 Department officer working at the Australian High Commission in Pretoria. This led to a joint investigation with the Australian Commission for Law Enforcement Integrity (ACLEI), which commenced in early 2017.

21. In brief, the investigation found that there was corrupt conduct by Department officer in the office of the Australian High Commission in Pretoria in processing student visas. This conduct was said to involve Department officers ‘bypassing’ the mandatory allocation of cases through the Department’s work management system and ‘recklessly’ approving the grant of visas to Nigerian applicants, who were identified as high risk, without following the ‘otherwise rigorous assessment’ process that would have been applied to Nigerian applicants as part of Department risk profiling. The processes involved a range of additional assessments which included a direction to ‘check employment and education documents for any evidence of fraud’. This was one of several checks specified in a three page assessment direction, being the ‘Student Visa Assessment Methodology’ which is referred to in and attached to the Visa Cancellation Referral Report. It is alleged that money was paid to these Department officers by third parties who were associated with Nigerian students at the Australian colleges referred to in the report.

22. Attached to the Visa Cancellation Referral Report is a report headed ‘Investigation Report LES Misconduct’ which summarises the investigation undertaken and analyses 13 applications of Nigerian students that were approved by the alleged corrupt officers.

23. Relevantly, Ms Odinkaeze is not the subject of this analysis but her application is one of 21 Nigerian student applications processed in the period of February, March and April 2017 that was identified by the Department as being tainted by the corrupt conduct of the Department officers. These applications were identified because they had been processed by the relevant Department officer, they had been allocated outside the usual Department case management system, there were deficiencies identified in the processing of the applications and the visas were processed in a period of between 2 and 13 days. The Investigation Report LES Misconduct noted that Ms Odinkaeze’s application was approved in 11 days. However, there is no information contained in either report about the usual time taken to process these applications.

24. According to an internal referral to the General Cancellations Network dated 16 August 2017, Ms Odinkaeze was assessed as a ‘high risk’ client based on her Nigerian nationality. Her application had been assigned to one of the alleged corrupt officers for processing outside the Department case management systems. It was also noted that Integrated Client Services Environment (ICSE) for Ms Odinkaeze’s student visa showed that the Department officer ‘failed to verify [Ms Odinkaeze’s] claimed employment and education’. This deficiency in the processing of Ms Odinkaeze’s application was said to indicate ‘that without this fraudulent conduct her visa would not have been granted’.  

25. The Department also undertook a review of 11 of the 21 affected applications to assess whether the visa holders would have satisfied the student visa requirements. A report was prepared by a Department officer detailing her findings in relation to these applications. Ms Odinkaeze was not the subject of these further investigations and the only evidence provided to the Tribunal about deficiencies in the processing of Ms Odinkaeze’s application was the general information about the processing of the 21 Nigerian applications, the information contained in the internal referral dated 16 August 2017 (which refers to the ICSE record) and a copy of the relevant ICSE record from Ms Odinkaeze’s student visa file. The ICSE record is to the following effect:

    Travelling with:   Alone, Never married,not in a defacto relationship
    PICS:  Health:            Meets
    PICS:  Character:        No Concerns
    PICS:  Custody:           No Concerns
    Travel history:             No Travel History
    Compliance History:      No Concerns
    Documents Held:

    COE

    OSHC

    Additional details:CoE:English for Academic Purposes 17.07.2017-23.09.2017
    CoE:Non AQF Award-IELTS Plus 25.09.2017-01.12.2017
    CoE:Diploma of Nursing 29.01.2018-05.07.2019
    Appl holds a Diploma in Community Health
    OSHC valid from 17.07.2017-05.09.2019
    Letter of employment from Veta Hospitals Limited
    GTE support letter

    GTE Criteria met-course is relevant to educational background and employment history that the applicant already holds. I am satisfied that a clear and logical pathway has been demonstrated. I am satisfied that the applicant meets the requirement of a genuine temporary entrant and genuine student.

    On the evidence provided I am satisfied that the requirements for grant of the visa are met. Visa granted.

    STATUS

    On the evidence provided I am satisfied that the requirements for grant are met and recommend visa be granted for ODINIKAEZE

    Visa decision letter to be sent to the applicant or authorised recipient by mail

26. By letter dated 28 August 2017 a delegate of the Minister notified Ms Odinkaeze of the intention to cancel her visa on the basis of the findings of the Department investigation. The notice provided particulars that ‘a Department officer may have acted improperly in order to grant [her] visa’. The delegate further advised that she had a reasonable suspicion that Ms Odinkaeze’s visa was obtained as a result of fraudulent conduct by any person and that there appeared to be a ground for cancellation under s.116(1)(g) of the Act. Ms Odinkaeze was not provided with copies of the Visa Cancellation Referral Report, the Investigation Report LES Misconduct or the internal referral and ISCE records. She was invited to comment on the ground for cancellation and to give reasons as to why her visa should not be cancelled.

27. Ms Odinkaeze responded to that notice by letters dated 29 and 31 August 2017 to the effect that she had ‘applied and got a student visa after…[submitting] all the documents required to meet the eligibility criteria for Class TU subclass 500 student visa.’ Ms Odinkaeze stated that her ‘intention was genuine’ and she wished to ‘pursue and finish [her] studies.’ She also provided documents evidencing her enrolment, attendance and academic performance in the ‘English for Academic Purposes’ course at TAFE.

1. The delegate cancelled Ms Odinkaeze’s visa on 11 October 2017. She noted the investigations undertaken by the Department and found as follows:

   11.The department undertook an investigation into the circumstances leading to the grant of the visa. It was identified through this investigation that fraudulent conduct occurred when a Department employee granted the visa.

   12.I have considered the circumstances of this investigation and the reported actions of a Department employee in relation to the grant of the visa and consider that they did act improperly in granting the visa. I find the behaviour of the Departmental employee amounts to fraudulent conduct which resulted in Ms ODINKAEZE obtaining the visa.

   13.I have considered Ms ODINKAEZE’s claims that she is unaware of such fraudulent conduct and applied for the visa based on her own merits. The evidence that the ground for cancellation exists was provided by reliable verifiable sources. I note the paragraph 2.43(1)(o) will allow the Minister to exercise this discretion where it is reasonably suspected that the visa was obtained as a result of fraudulent conduct by any person. It would not be necessary that the fraudulent conduct was committed by the visa holder.

   14.I have also considered that possible outcomes of a visa application unaffected by fraudulent conduct have no bearing on whether the visa was obtained as a result of fraudulent conduct. The heart of the ground relates to reasonably suspected fraudulent conduct. It does not provide scope for consideration of eligibility under different circumstances. Therefore, while I acknowledge Ms ODINKAEZE submits to have met the criteria for the grant of the visa, I am satisfied it does not affect whether or not the ground for cancellation exists.

   15.Therefore, I am satisfied that the cancellation ground under section 116(1)(g) of the Migration Act 1958, as a prescribed ground, as defined in regulation 2.43(1)(o) of the Migration Regulations 1994 exists in this case, because the visa was obtained due to the fraudulent conduct of any person.

2. The delegate considered the discretionary matters and noted, in summary, that while a number of the matters weighed in favour of Ms Odinkaeze the circumstances in which the ground for cancellation arose were serious and impacted on the integrity of the Australia visa program. The delegate concluded at [45]:

   After considering all the available information, I am satisfied that the ground for cancelling the visa outweighs the reasons not to cancel the visa. I consider that the integrity of the Australian visa programme and Australia’s border security are the primary considerations in this case.

3. The delegate therefore decided to cancel the visa. Ms Odinkaeze lodged an application for review of the delegate’s decision with this Tribunal on 19 October 2017.  

   PROCEDURAL ISSUES

4. The Department provided the Visa Cancellation Referral Report, the Investigation Report LES Misconduct (which was partially redacted) and the internal referral to the General Cancellations Network dated 16 August 2017 to the Tribunal as part of the Department file. These documents were the subject of a certificate under s.375A of the Act. A number of the attachments to the Visa Cancellation Referral Report were not provided, including the Student Visa Methodology and the Report containing detailed case assessments for 11 of the 13 applications referred to in the Investigation Report LES Misconduct.

5. Section 375A provides:

   (1)  This section applies to a document or information if the Minister:

   (a)has certified, in writing, that the disclosure, otherwise than to the Tribunal, of any matter contained in the document, or of the information, would be contrary to the public interest for any reason specified in the certificate (other than a reason set out in paragraph 375(a) or (b)); and

   (b)has included in the certificate a statement that the document or information must only be disclosed to the Tribunal.

   (2)  If, pursuant to a requirement of or under this Act, the Secretary gives to the Tribunal a document or information to which this section applies:

   (a)the Secretary must notify the Tribunal in writing that this section applies to the document or information; and

   (b)the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review.

6. The Tribunal corresponded with the Department about the validity and scope of the certificate and on 19 February 2018 the Department revoked the certificate and issued a new certificate in respect of the reports under s.376 of the Act, which provides:

   that disclosure of this material would be contrary to the public interest because the relevant information could either:

   (a)prejudice a current investigation of a possible breach of the law; and/or

   (b)disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would, or be likely to prejudice the effectiveness of those methods.

7. The Department also provided to the Tribunal redacted versions of the Visa Cancellation Referral Report and the Investigation Report LES Misconduct, which redacted the names of the Department officers and third parties who are the subject of the investigation and the names and details about investigations undertaken in respect of the other Nigerian students.

8. The Tribunal did not release copies of the unredacted reports, which were the subject of the s.376 certificate. In reaching the decision not to release the unredacted reports, the Tribunal had regard to the public interest reasons specified by the secretary (which refer to prejudicing a current investigation and disclosing investigative methods) and the public interest in protecting personal privacy, in accordance with the principles set out in the Privacy Act 1988 (Cth).

9. The redacted version of the Visa Cancellation Referral Report and the Investigation Report LES Misconduct and a redacted version of the internal referral to the General Cancellations Network dated 16 August 2017 were provided to Ms Odinkaeze by the Tribunal by letter dated 22 March 2018. The Tribunal also requested Ms Odinkaeze’s comments or response in relation to adverse information contained in the reports under s.359A of the Act.

10. At the time of the release, the Tribunal had not been provided with the case assessment report from the Department officer about the 11 cases. This report was provided on 17 April 2018 and was subject to a certificate under s.376 of the Act. As this report did not relate to Ms Odinkaeze, it was not released to her or her representatives. Nor did the Tribunal have regard to the contents of the report.

11. 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

12. 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.

13. 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.

14. 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.

15. 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.

16. Dr Eweama also gave evidence. He lives and works in Perth. He said that Ms Odinkaeze was his cousin. Ms Odinkaeze had asked him whether he would be willing to help her and because he could see she wanted to improve herself, he had been prepared to sponsor her. He therefore agreed to loan her the money to pay for the English course but expected her to repay him when she returned to Nigeria. Dr Eweama had assisted Ms Odinkaeze in lodging her application because she had difficulties with the Internet in Nigeria. She emailed the documents to him and he assisted her in lodging the application online. He was not aware of any fraudulent conduct by Department officers or agents and had no dealings with anybody other than Ms Odinkaeze in making the application. He said he would continue to support Ms Odinkaeze in her studies in Australia.

17. 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?

18. 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.

19. 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].

20. 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.

21. 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).

22. 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.

23. 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.

24. 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.    

1. 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

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

   Jan Redfern
   Deputy President

   
   

   Dr Colin Huntly
   Member