Australian Immigration Daily News

Amazing.  Simply amazing. Not to mention, appalling!

I am referring to the case of Ms Oguchukwu Odinkaeze that was recently heard before the AAT: Odinkaeze (Migration) AATA 1295 (17 May 2018).

What is amazing and appalling about this case?

It is that the Department cancelled Ms Odinkaeze’s visa on the basis that there had been fraudulent conduct by an officer of the Australian High Commission in Pretoria, South Africa in the processing of certain visa applications of other Nigerian nationals. And apparently, because Ms Odinkaeze’s visa application was reviewed by this officer, it was somehow assumed that the grant of her student visa must also have been affected by fraud.

So in essence, the Department apparently acted here with “too broad a brush”, and Ms Odinkaeze was swept up by the Department’s efforts to cancel visas that had been fraudulently granted.  Even though, on review by the Tribunal, it was found that there was not sufficient evidence to show that the grant of Ms Odinkaeze’s visa was affected by fraud.

Talk about an absolute nightmare, and a chapter straight out of Kafka!

Here are the details of the story, as recounted in the Tribunal’s decision:

In August 2017, the Australian Border Force identified a link between offshore nationals engaging in criminal activity and visas granted by the officer of the High Commission in Pretoria. This led to a joint investigation by the ABF and the Australian Commission for Law Enforcement Integrity.

The investigation found that the officer of the High Commission in Pretoria had engaged in :corrupt conduct” by bypassing the normal allocation of cases through the Department’s work management system and recklessly approving the grant of visas to Nigerian nationals who were identified as “high risk”, without following normal review processes.

There were also allegations that money was paid to Department officer at the High Commission by third parties associated with Nigerian students.

As it turned out, Ms Odinkaeze’s visa application had been assigned to one of the allegedly corrupt officers outside the Department’s normal work allocation system.

A Department officer proceeded to cancel Ms Odinkaeze’s student visa apparently on the sole basis that the application had been granted by an officer who had been involved in the fraudulent conduct.

The irony here was that, on the evidence that is discussed in the Tribunal’s decision, Ms Odinkaeze’s student visa application appeared to be completely legitimate.  The background was that she had been working as a nurse’s aide at a private hospital near Lagos, Nigeria, and held a diploma in community health.  She wished to study in Australia to gain a diploma of nursing, and had a letter from the private hospital where she worked in Nigeria that guaranteed her employment upon the completion of her studies in Australia.

After arriving in Australia Ms Odinkaeze had undertaken advanced English language courses at a TAFE, for which she had paid $6,000,  and had enrolled in and paid $8,000 for the first semester of the diploma of nursing.

The Tribunal relied on the following considerations to overturn the cancellation of the visa:

• There was no evidence that Ms Odinkaeze was aware of the fraud;
• The Departmental officer who had cancelled the visa had stated that she had a reasonable suspicion that the visa had been granted as the result of fraud, without stating why those suspicions were reasonable in Ms Odinkaeze’s case;
• There was no evidence of a causal connection between any fraud in the High Commission in Pretoria and the grant of this particular visa.  In other words, it could not be demonstrated that the visa would not have been granted had the fraud not occurred.
• There was no evidence that the Department officer had failed to verify Ms Odinkaeze’s employment and education records;
• Importantly, the Tribunal had made enquiries which suggested strongly that the records that had been relied on in support of the application were genuine.

In other words, the Tribunal concluded that Ms Odinkaeze’s student visa should not be cancelled just because it had been processed by an officer in the High Commission who had been involved in a scheme to fraudulently grant other visa applications.

As there was no evidence to support a “reasonable suspicion” that Ms Odinkaeze’s visa had been granted through fraud, the visa cancellation was set aside.

This is surely a case where the Tribunal did an excellent job in fulfilling its review function, and in safeguarding the rights of the visa holder against regulatory overreach and arbitrary action by the Department.

For here, the applicant was completely innocent, and there was no evidence that there had been any fraud in the review of her visa application.

Like I said at the beginning, both amazing and appalling!

A link to a story in the Sydney Morning Herald about the fraud at the High Commission and Ms Odinkaeze's case can be accessed by clicking here.