1926025 (Migration) - [2020] AATA 1451

1926025 (Migration) [2020] AATA 1451 (3 February 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
CASE NUMBER: 1926025
MEMBER:Cathrine Burnett-Wake
DATE:3 February 2020
PLACE OF DECISION: Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa.
Statement made on 03 February 2020 at 5:55pm

CATCHWORDS
MIGRATION – cancellation – Temporary Business Entry (Class UC) visas – Subclass 457 (Temporary Work (Skilled)) – incorrect answers on incoming passenger cards and visa applications – criminal convictions and pending charges – claims to be a police informer – formal guilty verdict and sentence – chance of passing character test – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 97-105, 107-109, 111
Migration Regulations 1994, Schedule 4 Public Interest Criteria (PIC) 4001; r 2.41
CASES
Brown v MIAC [2010] FCAFC 33
COT15 v MIBP (No 1) (2015) 236 FCR 148
Drake v MIEA (1979) 76 FLR 409
Goundar v MIBP [2016] FCA 1203
Ibrahim v MHA [2019] FCAFC 89
MIAC v Khadgi (2010) 190 FCR 248
MIBP v Singh [2016] FCAFC 183
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 457 (Temporary Work (Skilled)) visa under s.109(1) of the Migration Act 1958 (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with ss.101 (b) and 102(b) of the Act due to incorrect answers the applicant provided on incoming passenger cards and onshore visa applications relating to non-disclosure of criminal convictions and pending charges. The delegate was satisfied there was a ground to cancel the visa and the considerations that weighed in support of cancelling the visa outweighed the considerations that weighed against cancelling the visa. The delegate decided to exercise their discretion under s.109 to cancel the visa on 6 September 2019.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
Following the cancellation of the applicant’s Subclass 457 visa he was placed into immigration detention, where he currently remains.
On 25 November 2019, the applicant was invited to attend a hearing before the Tribunal on 12 December 2019 in relation to the Subclass 457 cancellation.
The visa applicant also has another matter before the Tribunal (file number [number]) relating to the refusal of his Subclass 820 Partner visa application on the basis the applicant did not meet Public Interest Criteria (PIC) 4020. The delegate in that matter found the applicant provided false or misleading information in a material particular in relation to his Subclass 820 partner visa application and a visa he held in the period of 12 months before the partner visa application was made. Initially this…

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.

Continue reading 1926025 (Migration)

Details

AGLC: 1926025 (Migration) [2020] AATA 1451
Case: [2020] AATA 1451
Decision Date: 3 February 2020

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered the cancellation of a Temporary Business Entry (Class UC) visa, specifically a Subclass 457 (Temporary Work (Skilled)) visa, held by an applicant. The dispute arose from allegations that the applicant provided incorrect answers on incoming passenger cards and visa applications, and failed to disclose criminal convictions and pending charges, despite claiming to be a police informer. The Tribunal was tasked with determining whether the visa cancellation was valid and should be affirmed.

The primary legal issues before the Tribunal were whether the Minister had the power to cancel the applicant's visa under section 109 of the Migration Act 1958 (Cth), and if so, whether the visa should be cancelled. This involved assessing whether a valid notice under section 107 of the Act was issued to the applicant, and whether the applicant had failed to comply with the requirements of sections 101(b) and 102(b) of the Act by providing incorrect answers on visa applications and passenger cards concerning criminal convictions and pending charges. The Tribunal also had to consider the applicant's claims of being a police informer in the context of these non-compliance issues.

The Tribunal reasoned that section 109 of the Act permits visa cancellation if a visa holder fails to comply with provisions requiring the provision of correct information and notification of changes in circumstances. It found that the notice issued under section 107 of the Act complied with statutory requirements and that the applicant did not respond to this notice. The Tribunal was satisfied that the applicant had indeed failed to comply with sections 101(b) and 102(b) by answering "No" to questions about criminal convictions and pending charges on multiple occasions, including his Subclass 457 visa application, when his criminal history and outstanding charges in another country indicated otherwise. The Tribunal noted that a formal guilty verdict and sentence had been imposed in relation to some of these matters, and a warrant had been issued for his arrest concerning other outstanding charges. The Tribunal concluded that the decision to cancel the applicant's visa should be affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be affirmed. CONSIDERATION OF CLAIMS AND EVIDENCE Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision. Did the notice comply with the requirements in s.107? The Tribunal has considered the terms of the s.107 notice given to the applicant and the language used by the delegate to inform the applicant of their intention to consider cancellation, subject to the applicant's response to that notice. It is satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued under s.107 complied with the statutory requirements. The applicant did not respond to the s.107 notice issued by the Department.Was there non-compliance as described in the s.107 notice? The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was reproduced in the delegate’s decision, which was provided to the Tribunal by the applicant when the application for review was made. The decision detailed that there was non-compliance with ss.101(b) and 102(b) of the Act[1] in the following respects:[1] Section 101(b) of the Act requires a noncitizen to fill in or complete the application form in such a way that no incorrect answers are given or provided. [In] March 2015 – The applicant arrives in Australia on a Business Visitor [visa]. He marks ‘No’ on his Passenger Card to the question ‘Do you have any criminal conviction/s’ [April] 2015 – The applicant arrives in Australia on a Business Visitor Visa. He marks ‘No’ on his Passenger Card to the question ‘Do you have any criminal conviction/s’ [July] 2015 – The applicant arrives in Australia on a Business Visitor Visa. He marks ‘No’ on his Passenger Card to the question ‘Do you have any criminal conviction/s’ 28 October 2015 – The applicant submitted an application for a Temporary Work (Skilled) (Subclass 457) visa. On the electronic application form he answers ‘No’ to the following questions under the character declaration: Has any applicant ever been charged with any offence that is currently awaiting legal action? Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)? Has any applicant ever been the subject of an arrest warrant or Interpol notice? Has any applicant ever been found guilty of a sexually based offence involving a child (including where no conviction was recorded)? Has any applicant ever been named on a sex offender register? o At page 11 under the heading ‘Declaration by applicant’ the applicant answered the following (in bold):o WARNING: Giving false or misleading information or documents is a serious offence.I declare that:§The information provided in this form is complete, correct and up-to-date. Yes§I understand that if any fraudulent documents or false or misleading information has been provided with this application or if I fail to satisfy the Minister of my identity, my application may be refused and I, and any member of my family unit, may become unable to be granted a visa for a specified period of time. Yes§I understand that if documents are found to be fraudulent or information to be incorrect after the grant of a visa, the visa may subsequently be cancelled. Yes 17 December 2018 – the applicant submitted a Partner Combined (Subclass 820/801) visa application which was sponsored by his partner [Ms A] who the Tribunal is satisfied is an Australian citizen. To the following questions the applicant answered ‘No’ Has any applicant ever been charged with any offence that is currently awaiting legal action? Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)? Has any applicant ever been the subject of an arrest warrant or Interpol notice? Has any applicant ever been found guilty of a sexually based offence involving a child (including where no conviction was recorded)? 22 July 2019 – the applicant, as part of this partner visa application, uploaded a [Country 1] Police Service […] clearance dated [in] September 2018. This revealed the applicant has the following criminal history in [Country 1]: Two counts of fraud ([in] October 1984) – ‘charges taken as one for purpose of sentence. 12 months imprisonment which is suspended for four years’ [Number] counts of fraud ([in] May 1987) – ‘charges taken as one for purpose of sentence. 6 years imprisonment which is conditionally suspended for five years and [amount] compensation’ Two counts of fraud ([in] April 1994) – ‘charges taken as one for purpose of sentence. 8 years imprisonment which is conditionally suspended for 5 years and [amount] compensation’. In addition to the applicant’s above convictions, the [Country 1 police service] advised the Department of Home Affairs (the Department) that the applicant was charged with the following criminal offences in [Country 1] prior to his first arrival in Australia: Committing or attempting to commit an indecent act with an under aged boy/girl, case number [number]; Sexual assault, case number [number] The [police service] advised the Department that a warrant had been issued for the applicant’s arrest in [Country 1] in 2016 in relation to his outstanding charges after he allegedly failed to attend a scheduled court appearance.The hearing

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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