Kenyeres (Migration) - [2020] AATA 1050

Kenyeres (Migration) [2020] AATA 1050 (6 March 2020)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Zsolt Kenyeres
CASE NUMBER:  1724540
DIBP REFERENCE(S):  BCC2012/380759 CLF2010/23111
MEMBER:Sheridan Lee
DATE:6 March 2020
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal affirms the decision to cancel the applicant’s Subclass 121 (Employer Nomination Scheme) visa.
Statement made on 06 March 2020 at 1:59pm

CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Migrant) (Class AN) visa – Subclass 121 (Employer Nomination Scheme) – Federal Circuit Court remittal – incorrect information and bogus documents in visa application – false work history, forged signature and fake employment contract – skills assessment secured using false and misleading information – employment, criminal and migration history in Europe, the USA and Australia – currently in prison – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 97(c), 101(b), 103, 107(1)(a), 109(1), 359A, 359AA, 375A, 376
Migration Regulations 1994 (Cth), r 2.41, Schedule 2, cl 121.211(b)(i)
CASE
COT15 v MIBP (No 1) (2015) 236 FCR 148
MIAC v Khadgi (2010) 190 FCR 248
STATEMENT OF DECISION AND REASONS

This is an application for review of a decision made by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 121 (Employer Nomination Scheme) visa under s.109(1) of the Migration Act 1958 (the Act).
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.
On 2 October 2012, the delegate cancelled the applicant’s Subclass 121 visa on the basis that the applicant provided incorrect answers on his visa application form and supplied bogus documents in support of the application. Specifically, the delegate found that the applicant had provided a false work history, a forged signature by his purported sponsor and a fake contract of employment. In addition, the delegate found that the applicant’s skills assessment, which was submitted in support of his visa application, was secured using false and misleading information and was therefore a bogus document.
The delegate cancelled the visa for non-compliance with ss.101 (b) and 103 of the Act. 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 issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
PROCEDURAL HISTORY
Visa application
On 16 February 2010, the applicant applied for a Subclass 121 visa. Included with that application was form 47ES, signed on 4 February 2010. At question 87 of the form was a declaration that the information supplied in the visa application was…

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 Kenyeres (Migration)

Details

AGLC: Kenyeres (Migration) [2020] AATA 1050
Case: [2020] AATA 1050
Decision Date: 6 March 2020

CaseChat Overview and Summary

This matter concerned an appeal by Mr Kenyeres against the cancellation of his Subclass 121 (Employer Nomination Scheme) visa. The visa had been granted based on an application that included false work history, a forged signature, and a fake employment contract. The applicant's skills assessment, crucial for the visa grant, was secured using this false and misleading information. The applicant had a history of employment, criminal, and migration issues in Europe, the USA, and Australia, and at the time of the decision under review, was in prison.

The primary legal issue before the Tribunal was whether the cancellation of Mr Kenyeres' visa was justified. This involved determining the weight to be given to various factors, including the circumstances of the non-compliance, the applicant's claims of persecution, and the fact that the visa would not have been granted but for the provision of incorrect information and bogus documents. The Tribunal was required to consider whether the applicant's alleged motivation to escape a conspiracy by the Hungarian Government, and similar claims made in the USA, were relevant to the cancellation decision, particularly in light of previous judicial findings in the United States that rejected such claims.

The Tribunal reasoned that the applicant's claims of being set up by the Hungarian Government were not persuasive, especially given the findings of the US courts which had rejected similar asylum claims and found substantial evidence of criminal conduct. The Tribunal placed significant weight on the fact that the visa would not have been granted without the applicant's fraudulent submissions, specifically the false work experience that was essential for meeting the skills assessment requirements for the nominated occupation. The Tribunal found that the applicant's immigration history, including overstaying a visa in the USA and subsequent unsuccessful asylum claims, further supported the cancellation. The Tribunal concluded that the provision of incorrect information and bogus documents was a critical factor that strongly supported the cancellation of the 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

This factor is not relevant in the applicant’s circumstances as there is no genuine document for consideration. The Tribunal finds that this consideration is neutral and weighs neither in support of nor against the cancellation of the applicant’s visa.The likely effect on a decision to grant a visa or immigration clear the visa holder of the correct information or the genuine document Any country has a sovereign right to determine who can enter its borders. In the present matter, the applicant applied for a visa under the Employer Nomination Scheme. The purpose of the scheme was to allow Australian employers to sponsor employees who were foreign nationals to work in Australia. The grant of the visa was predicated on the applicant holding the necessary skills and experience to undertake the nominated occupation. At the time of application, the applicant sought to meet the requirements of cl.121.211(b)(i). The clause required an assessing authority specified by the Minister in a Gazette Notice as the assessing authority for the occupation to which the appointment related to have assessed the applicant's skills as suitable. In this case, the authority specified for the occupation of Supply and Distribution Manager was AIM. Without the inclusion of the applicant’s work experience with Polytherm, the applicant would have fallen short of the required five years of relevant managerial experience that was required by AIM to issue a suitable skills assessment. Without a successful skills assessment, the applicant would not have satisfied a mandatory criterion for the grant of the Subclass 121 visa. But for the provisions of the incorrect information and bogus document, the applicant would not have been granted the visa. The Tribunal to find that this consideration supports the cancellation of the applicant’s visa, a consideration which the Tribunal gives significant weight.The circumstances in which the non-compliance occurred The applicant claims that he was motivated to move his family to Australia in order to escape a conspiracy against him by the Hungarian Government. Similar claims were made by the applicant in the USA when he claimed asylum following his detention for remaining in the country illegally. In that case, the courts rejected the applicant’s claims to have been set up, finding that the substantial evidence was enough to support a finding that he committed the alleged crimes. The judgement of the Supreme Court outlined that the applicant entered the USA on a tourist visa on 29 January 1997. The tourist visa was valid until 28 July 1997, however the applicant remained in the USA illegally from that time. The INS initiated removal proceedings on 21 June 2000 and the applicant was taken into immigration detention. The applicant then applied for asylum. The Board of Immigration Appeals affirmed the earlier findings of a single Immigration Judge that the applicant’s asylum application was untimely and he could not make a showing of changed circumstances or extraordinary conditions necessary to excuse the delay of his removal. This was appealed to the Court of Appeals for the Eleventh Circuit, which denied the stay, until it was finally decided by Circuit Justice Kennedy.