Student Visa Cancellation on Grounds of ‘Reasonable Suspicion’ of Fraudulent Conduct

Why was the Applicant’s Student Visa Cancelled?

 

The Applicant’s Student (Temporary) (Class TU) Subclass 500 visa was cancelled on the grounds that the Minister reasonably suspected the visa had been obtained as a result of fraudulent conduct of any persons, a Department officer who had ‘recklessly’ approved the grant of student visas to Nigerian applicants without following the ‘otherwise rigorous assessment’ process.

 

Issues

 

In consideration of whether a ground for cancellation existed, the Tribunal looked to the meaning of ‘reasonably suspects’ in the context of r.2.43(1)(o) and s 189 of the Act.

 

Relevant Legislation

 

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, this includes the ground set out in s 116(1)(g) to cancel a visa if a ‘prescribed ground’ for cancelling a visa applies.

 

Regulation 2.43(1)(o) gives the Minister the power to cancel a visa where,

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

 

The Tribunal’s Considerations in Assessing the Student Visa Cancellation

 

The Tribunal found that it is not necessary for the decision-maker to be satisfied that the visa was obtained by fraud, a reasonable suspicion is sufficient such that it is founded on objective circumstances which are more than mere surmise or conjecture.  The factual foundation required to ground a reasonable suspicion is less than that required for a belief.

 

Sufficient evidence was found to support a finding that there is a reasonable suspicion of fraud by the Department officer who was not allocated the application in the case management system or by team leader.  Although there was evidence of fraud in the conduct of the Department officer, it was found that the visa application may well have been approved by another authorised officer in the normal course of matters.

 

The Tribunal’s Decision of the Student Visa Cancellation Appeal

 

A reasonable suspicion of the causal link between the Department officer’s conduct and the granting of the visa was found.  The Tribunal found that the ground to cancel the Applicant’s visa under s 116(1)(g) was not established.

 

 

Key Takeaways About the Student Visa Cancellation Case

  • It is not necessary that the Applicant has knowledge or ‘knowing involvement’ in the conduct to enliven the power to cancel

  • Sufficient evidence must be found of a causal connection between the fraudulent conduct and the grant of the visa

 

Getting Assistance

 

If you have had a student visa cancelled by the Department, you have limited time to apply for merits review. You should consider contacting us immediately at 02-27007200 or email us to book in a time at info@ahclawyers.com.

 

We speak fluent English, Mandarin, Cantonese, Indonesian and Malay. If these aren’t your language, we can also help you arrange an interpreter.

 

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