GATTNER (Migration)

This matter concerned the cancellation of the Applicant's Employer Nomination (Permanent) (Class EN) visa, subclass 186. The dispute arose because the Applicant was subject to outstanding criminal charges in Poland, which had not been disclosed in his visa applications. The Tribunal was required to determine whether the Applicant had failed to comply with the requirements of the Migration Act 1958 (Cth) and, if so, whether the visa cancellation decision should be set aside.

The primary legal issue was whether the Applicant had provided incorrect answers in his visa applications, specifically in response to questions about arrest warrants or Interpol notices. Section 101(b) of the Act requires that visa applications be completed such that no incorrect answers are given, and section 100 clarifies that an answer is considered incorrect even if the applicant was unaware of its inaccuracy at the time. The Tribunal also considered whether the notices of intention to cancel the visa complied with the procedural requirements of section 107 of the Act.

The Tribunal found that while the Applicant had indeed answered "No" to questions regarding arrest warrants or Interpol notices in both his Temporary Work (Skilled) (Subclass 457) and Employer Nomination (Permanent) (Class EN) (Subclass 186) visa applications, the circumstances surrounding these charges were complex. The Applicant provided evidence suggesting he was a victim of fraud and that his attempts to report the matter to Polish authorities were unsuccessful due to the alleged connections of the perpetrator. The Tribunal accepted the Applicant's explanation that he was unaware of the charges at the time of his visa applications, and that the "No" answers, while technically incorrect under section 100, were not given with intent to deceive. The Tribunal was satisfied that the notices of intention to cancel the visa complied with section 107.

Ultimately, the Tribunal concluded that the decision to cancel the Applicant's visa should be set aside. This outcome was based on the finding that the Applicant's non-compliance with section 101(b) was not deliberate and that he had provided a satisfactory explanation for the incorrect answers, particularly in light of his circumstances and the best interests of his children.