2217274 (Migration) - [2023] AATA 1691

2217274 (Migration) [2023] AATA 1691 (30 April 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:Miss Meryl Shu Bing Mao Jiang
CASE NUMBER: 2217274

MEMBER:Noelle Hossen
DATE:30 April 2023
PLACE OF DECISION: Perth
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa.

Statement made on 30 April 2023 at 12:17pm
CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) visa – Subclass 186 - Employer Nomination Scheme – bogus document – incorrect information in the visa application – identity details – periods of unlawful residence – regular travel to home country – exclusion period expired – mental health issues – contribution to the community – decision under review affirmed
LEGISLATION
Migration Act 1958, ss 5(1), 48, 97 – 105, 107-109, 137J, 140, 189, 198
Migration Regulations 1994, Schedule 4, Public Interest Criterion 4013; r 2.41
CASES
MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133
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 Home Affairs to cancel the applicant’s Subclass 186 - Employer Nomination Scheme visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The delegate cancelled the visa on the basis that the applicant did not comply with Section 101(b) of the Migration Act because he provided misleading and incorrect information and declarations to the Department regarding his name, date of birth, and immigration history. He also did not comply with Section 103 of the Migration Act, in support of his Visa application because he provided passports, a birth certificate, and a marriage certificate which were bogus documents, as defined by the Migration Act. 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 appeared before the Tribunal on the 15 March 2023 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Punjabi and English languages. The Tribunal also heard evidence from the applicant’s wife [named].
The applicant was represented in relation to the review.
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…

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 2217274 (Migration)

Details

AGLC: 2217274 (Migration) [2023] AATA 1691
Case: [2023] AATA 1691
Decision Date: 30 April 2023

CaseChat Overview and Summary

This matter concerned an application for review of a decision to cancel the applicant's Employer Nomination (Permanent) (Class EN) visa, Subclass 186. The applicant had previously been found not to be a refugee and had exhausted appeals in relation to a Protection Visa application. The cancellation decision was based on the applicant providing incorrect information in his visa application, including identity details and periods of unlawful residence.

The Tribunal was required to determine whether to affirm or set aside the cancellation decision. In doing so, it had to consider various factors, including the applicant's circumstances, potential consequences of cancellation, and Australia's international obligations. The Tribunal was also directed to consider the best interests of any minor children, although no such children were identified as being affected in this case.

The Tribunal acknowledged factors favouring the applicant, such as his contribution to the community and mental health issues, but also considered factors against him, including the provision of incorrect information. The Tribunal applied the principles from *MIAC v Khadgi* regarding relevant considerations in cancellation decisions and had regard to the Department's Procedural Advice Manual. It found that cancelling the visa would not result in consequential cancellations for other persons and would not breach Australia's obligations under the CRC or ICCPR. The Tribunal noted the applicant's previous unsuccessful claims for protection, his status as an Indian citizen, and the lack of contemporary evidence to support his claims of ongoing fear of persecution if returned to India.

The Tribunal affirmed the decision to cancel the applicant's visa.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The Tribunal places some weight on those facts in favour of the applicant’s case and against the cancellation of the Visa.Other Considerations While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.whether there would be consequential cancellations under s 140. According to Departmental records there are no other persons who will be affected because the applicant holds the Visa. If the Visa is cancelled it will not result in the automatic consequential cancellation by operation of law of the Visa of any other person The Tribunal places some weight on these facts in favour of cancelling the Visa. if there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].) There is no evidence or information before the Tribunal to indicate that the applicant has any minor children in Australia whose interests may be adversely affected if the Tribunal decides to cancel the Visa. The Tribunal finds that cancelling the Visa does not result in breach of Australia’s obligations under the CRC or the ICCPR. The Tribunal gives this consideration some weight in favour of cancelling the Visa.whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations. The guidelines require that the Tribunal assess whether Australia would be in breach of its international obligations if the these include the obligation in relation to and pursuant to the Refugees Convention and the Refugees Protocol, the Convention Against Torture (CAT) and the International Covenant on Civil and Political rights (ICCPR). The applicant is a citizen of India. Under his identity [Alias A] born [DOB 2] the applicant lodged an application for a Protection Visa on 11 March 1997. He was found not to be a refugee as defined by the refugees Convention and his application was refused on 8 April 1997. He unsuccessfully appealed his decision in the Refugee Review Tribunal followed by judicial review in the Federal Court. [In] February 2004 the court found in the minister’s favour affirming the decision to refuse the applicant a Protection Visa. At the time of his response to the Department in response to the NOICC he stated that if he returned to India, he would continue to be at risk of persecution harm from Sikh extremists. He submitted a copy of a Wikipedia article which provided a partial list of victims of violence in the Punjab region of India in the period 1981 to 1995. He did not provide any contemporary data and no specific evidence to support his assertions regarding his ongoing subjective fear.