Nallen (Migration)

Nallen (Migration) [2021] AATA 2895 (12 July 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANTS:  Mr Dermot Patrick Nallen
Ms Siobhan Ester Maguire
CASE NUMBER:  1726602
DIBP REFERENCE(S):  BCC2017/1140539
MEMBER:Michelle East
DATE:12 July 2021
PLACE OF DECISION:  Perth
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.
The Tribunal has no jurisdiction with respect to the other applicant.

Statement made on 12 July 2021 at 2:56pm
CATCHWORDS
MIGRATION – cancellation – Employer Nomination (Permanent) (Class EN) Visa – Subclass 186 Employer Nomination Scheme – incorrect answers in visa application – Police clearance declared bogus – validity of the s 107 notice – applicant convicted of serious undeclared offences – contribution to the community – Australian citizen child – best interests of the child – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 48, 97-105, 107-109, 140
Migration Regulations 1994, r 2.41
CASES
DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64
MIAC v Khadji (2010) 190 FCR 248
Minister for Immigration and Citizenship v Brar [2012] FCAFC 30
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 first named applicant’s Subclass 186 - Employer Nomination Scheme 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 section 101(b) and 103 of the 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.
For the purposes of the Tribunal’s jurisdiction, the only decision that is before the Tribunal is that with respect to the first named applicant (the applicant). The other visa was automatically cancelled as a consequence of that cancellation, not by a decision but by force of the operation of s.140(1) of the Act. As no decision was involved in the visa cancellation under s.140(1), the Tribunal has no jurisdiction with respect to the other applicant.
The applicant appeared before the Tribunal on 5 March 2021 to give evidence and present arguments. The Tribunal also received oral evidence from his partner, Ms Siobhan Maguire.
The Tribunal exercised its discretion to hold the hearing by MS Teams video. The hearing was held during the COVID-19 pandemic. The Tribunal determined it was reasonable to hold a hearing by MS Teams, having regard to the nature of this matter and the individual circumstances of the applicant. The Tribunal also had regard to the Tribunal’s objective of providing a mechanism of review that is fair, just, economical and quick, and the delay to the matter if the hearing was not to be conducted by MS Teams.
The Tribunal considered an in person hearing to be the best option for this application, however, as the nature of the restrictions imposed by the pandemic were constantly changing, the Tribunal opted for the next best option of a video hearing. The Tribunal thanks the parties for their flexibility and agreement to proceeding in this manner.
The applicants were represented in relation to the review by their authorised representatives, Mr and Mrs Tuohy and also by Matthew Crowley, counsel.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
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.
If, as in this case, some of the alleged non-compliance is in respect to a previous visa application and does not relate to the visa the person currently holds, s.107A allows that the possible non-compliances that can be specified in a notice under s.107 and can be constituted a ground for cancellation under s.109 include non-compliances that occurred at any time, including non-compliance in respect of any previous visa held by the person. In this case, incorrect answers were alleged to have been included in the applicant’s 457 visa application as well as for his cancelled 186 ENS visa.
A decision maker must consider the response to the s.107 notice and decide if there was non-compliance in the way specified in the notice (s.108 of the Act). If there is non-compliance, a decision maker is to consider the response regarding the non-compliance and the prescribed circumstances set out in r.2.41 of the Migration Regulations 1994 (the Regulations) and after doing so may cancel the person’s visa (s.109 of the Act).
It follows the issues are whether a valid notice under s.107 was issued, whether a ground to cancel the applicant’s visa has been established and whether his visa should be cancelled, having regard to factors prescribed in the Regulations.
In the present matter, the Tribunal 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. Its reasons for finding so are detailed below.
Did the notice comply with the requirements in s.107?
In considering the validity of the notice issued under s.107 the Minister must first consider that a visa holder had not complied with a provision of the legislation and then meet the requirements for issuing a valid notice.
The Tribunal is satisfied that due to the online news article giving details of the applicant’s offending and the referral of the Irish Police clearance to the Irish authorities which resulted in the document being declared bogus, the delegate had reached the relevant state of mind to engage s.107.
The applicant’s representative, prior to the hearing, requested that the Tribunal hold a preliminary hearing to determine the validity of the s.107 notice. Their reason for doing so was that if the Tribunal decided the notice was not valid then the cancellation would not stand. If, however, it was decided the notice was valid then that alone could be appealed to the Federal Circuit Court.
After carefully considering their request, the Tribunal refused to proceed in this manner. The Tribunal’s role in any application is to decide the matter de-novo, that is, to stand in the shoes of the decision maker which in this case is the Minister. If the application was artificially separated and a decision made that the s.107 notice was valid, then the Tribunal would be required to consider the remainder of the application. It cannot make findings on a preliminary issue without considering the entire application.
The most efficient way of proceeding therefore was to consider the entire application in one hearing even though in the event the Tribunal found the notice not to be valid, some of the evidence may not have been necessary.
The applicant’s representative provided submissions as to the validity of the s.107 notice on several grounds. These are detailed below.
Misleading but not ‘incorrect’
As stated by the representative, the section 107 notice stated that in the 186 ENS visa application lodged 26 May 2016, the applicant responded ‘yes’ to the question ‘Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records). The applicant attached a statutory declaration detailing his conviction for a drink driving offence and his explanation of the circumstances.
The applicant has conceded he committed that offence but failed to mention that he had also been convicted of more serious offences in Ireland.
Mr Crowley has submitted that even though this information was misleading, it was not necessarily ‘incorrect’ as required by the terms of the legislation. Mr Crowley referred to legislative amendments which substituted the word ‘incorrect’ for the previous ‘false or misleading’.
The Tribunal does not accept the applicant’s submissions in this regard. The Tribunal is of the view that the question of whether an omission can be an ‘incorrect answer’ for the purpose of section 101 will depend upon the circumstances.
An example of this is when a question in an application seeks exhaustive information, such as ‘do you have a spouse?’. If a visa applicant fails to include any spouse that would be regarded as an incorrect answer. However, there are also circumstances where answers that are literally correct can be misleading by what they omit. Having said that the Tribunal does not consider that to be the case here.
In this matter the question was very clear as to whether the applicant had been convicted of AN offence in ANY country (emphasis added). To suggest that it is sufficient for an applicant to disclose only a minor offence and fail to disclose a serious offence for which he received a suspended sentence is inconsistent with the intention of the legislation and what it is trying to achieve.
The Tribunal therefore finds that by not providing details of all his convictions both here and in Ireland the applicant provided an incorrect answer and has not complied with section 101 of the Act.
To an officer, or an authorised system
The representative has noted that the section 107 notice alleged non-compliance with section 103 by reason of production of an Irish police clearance which falsely disclosed no criminal history. He further states that ‘Section 103 is engaged by: present[ing] or provid[ing] to an officer, an authorised system, the Minister, or a Tribunal performing a function or purpose under this Act, a bogus document or caus[ing] such a document to be so given, presented or provided’.
He further submitted:
The notice does not state how the document was provided. It simply says that it was ‘provided’. It seems obvious that the document was not provided to the Minister directly, nor to a Tribunal. But that leaves ‘officer’ and ‘authorised system’. These two are not co-extensive, there is significant difference between an ‘officer’ as defined and an ‘authorised system’ as defined. And the Minister has previously led evidence before the Full Court that not all online lodgement systems are necessarily ‘authorised systems’.
It is impossible for the applicant to take a position on the ‘bogus document’ allegation. The notice is deficient. And it is impossible for the Tribunal to conclude that the document was a ‘bogus document’ within the meaning of section 103 unless satisfied that the document was provided ‘to an officer, or ‘to an authorised system’.
A review of the applicant’s departmental records demonstrates that the application was lodged online using his IMMI account.
This ground relates to the applicant’s application for a 186 ENS visa on 26 May 2016 in which he provided an Irish police clearance issued on 12 November 2015 stating he was not convicted of any crime while living in Ireland.
The submission has been made that the notice does not say how the document was provided. The notice clearly states that the information was provided in support of the applicant’s 186 ENS visa application. It is clear when lodging a visa application that it would inevitably find its way to an ‘officer’ of the Department for processing. Even if the online lodgement facility is not an ‘authorised system’ as defined to draw an artificial distinction for these purposes is again not in line with the purpose of the legislation.
The applicant has subsequently conceded that the document is in fact bogus and has apologised for his actions.
The representative referred to the Full Federal Court authority of Minister for Immigration and Citizenship v Brar [2012] FCAFC 30. Having read that authority, the Tribunal is satisfied that it supports its conclusions on this point and does not agree with the applicant’s submissions on its application to his circumstances.
Within 14 days after you are taken to have received this letter
The provisions of the legislation require a visa holder to be notified that they must provide a response to the s.107 notice within 14 days. The 14-day period is qualified by the effect of weekends and public holidays as well as the effect of the notice being posted by mail.
The applicant’s submission relies on the decision of the Full Federal Court in DFQ17 v Minister for Immigration and Border Protection [2019] FCAFC 64 (‘DFQ17’) which requires the date within which an applicant could seek review of a decision must be clearly stated and could not be referenced by statutory formulas.
A review of the s.107 notice demonstrates that the date of the notice is on the first page of the documents and all the other information relating to the time for responding is contained under a heading ‘What you can do’.
It should be noted that there is no suggestion that the applicant was late in providing information in response to the notice or that he has suffered any prejudice in this regard. It is purely an argument that the notice is faulty for not providing an actual date for response instead of the ‘within 14 days’ which is qualified by various factors.
The Tribunal notes firstly that DFQ17 involves a visa applicant’s/holder’s entitlement to seek review of a substantive decision affecting their entitlement to a visa.
The Tribunal questioned counsel whether he was aware of any authorities that could support his submission of applying DFQ17 in the current circumstances. No submissions were received.
The Tribunal does not consider that DFQ17 has any application in the context of a s.107 cancellation notice where the response to the notice was not late. That decision is concerned with procedural fairness when an applicant has been late in their response and certain rights are then forfeited. These issues do not arise in this matter – the applicant was entitled to and had a procedurally fair hearing.
The Tribunal therefore finds that the timeframe provided by the s.107 notice was correct and that no issue arises because of DFQ17.
In the present matter, the Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.
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 non-compliance with s.101 of the Act which alleges that he provided incorrect evidence in his 457 visa application and also his 186 ENS visa application. Furthermore, failure to comply with s.103 of the Act by providing a bogus Irish Police clearance.
In the applicant’s 457 visa application lodged on 28 March 2013 the applicant responded ‘No’ to the question in the character declaration section:
Have you or any person included in this application to apply for this visa ever: been convicted of a crime or offence in any country (including any conviction which is now removed from official records)?
On the basis of his response no request was made for a police clearance.
In the applicant’s 186 ENS visa application lodged on 26 May 2016, the applicant responded ‘Yes’ to the question:
Has any applicant ever been convicted of an offence in any country (including any conviction which is now removed from official records)
Accompanying the application was a statutory declaration sworn by the applicant outlining the circumstances in which he incurred a 0.08% drink driving offence. An Australian National Police Certificate was also provided confirming the details of the declared drink driving offence and that he had no other convictions in Australia.
The applicant also provided an Irish police clearance dated 12 November 2015 which stated he had not been convicted of any crimes in Ireland.
As outlined in the delegate’s decision, the Department became aware of an online news article which reported the applicant had been convicted of a crime in Ireland and sentenced to imprisonment which term was suspended subject to payment of monies that had been gained by deception. The Irish Police clearance was referred to the appropriate authorities and was declared a bogus document (as defined in s.5(1) of the Act).
In his response dated 21 September 2017 to the s.107 notice, the applicant conceded the Irish Police clearance was not a genuine document. Furthermore, the applicant accepted he was convicted in Ireland but believed because he had not served prison time and had made full compensation to the insurance company that the ‘Irish offence had been made good’.
The Tribunal finds that there was non-compliance with s.101 by the applicant in the way described in the s.107 notice, specifically that he provided incorrect information in his 457 visa application in answering ‘No’ in the character declaration. The Tribunal also finds that there was non-compliance by failing to disclose his Irish conviction in his 186 ENS visa application. The Tribunal finds non-compliance with s.103 of the Act by providing a bogus document, namely his Irish Police clearance in support of his 186 ENS visa application.
Should the visa be cancelled?
As the Tribunal has decided there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1) of the Act. Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).
In exercising this power, the Tribunal must consider the applicant’s response to the s.107 notice and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations.
While these factors must be considered, they do not represent an exhaustive statement of the circumstances that are relevant in any given case: MIAC v Khadji (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 (PAM 3) ‘General visa cancellation powers’ which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.
Prescribed circumstances
The prescribed circumstances that are to be considered before making a decision are set out in r.2.41 of the Regulations.
The correct information
The correct information in this case is that the applicant was convicted in an Irish court of a crime.
The content of the genuine document (if any)
The genuine Irish police clearance would have included details of the conviction for making a gain or a loss by deception, showing a fine of 1000 euros and a sentence of 6 months imprisonment.
Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document
The incorrect information and bogus document provided were both directly relevant to the assessment of the applicant’s character and Public Interest Criterion (PIC 4001).
The Tribunal notes the applicant has not provided a genuine Irish police clearance which makes it difficult to assess whether the applicant has been convicted of or been involved in other criminal activity.

In these circumstances, it is impossible to know whether the applicant’s visa would have been granted had the Department been given the opportunity to fully consider whether he met PIC 4001.
The Tribunal finds this weighs in favour of cancelling the visa.
The circumstances in which the non-compliance occurred
The applicant has explained in written submission as well as in his oral evidence the background to his offending in Ireland. He has claimed in his response to the s.107 notice that he had his car stolen and complained to the police. He made a claim with his insurer and was paid out. Subsequently he was told his car was in another town and had been modified to avoid detection. The applicant claims he was intimidated by organised criminals and was pressured into not reporting the recovery of the vehicle. This led to him being charged with making a gain or a loss by deception. According to the online news report discussed by the delegate in the decision, Judge Mary Devins decribed the applicant as not being a credible witness and said she doubted his car had been stolen from outside his home in the first instance. Her Honour was also reported as stating:
I believe he was in on it from the start. His actions were not that of an honest man.
The article goes on further:
His solicitor, Mr Peter Keane said his client was a married man who worked in the construction industry but became unemployed and set up a business in March of 2008. However, he said that when he went on his honeymoon his accounts were ‘rifled’ and money was taken from it. He said he was in financial difficulty but had brought in 3000 euros as compensation to Quinn Direct. The court heard the jeep was sold by Quinn for 12,960 euros, but the outstanding balance was 18,265 euros.
‘Your lifestyle and actions were not admirable to say the least’ said Judge Devins before attacking the character of his friends. ‘I have to take into account your plea and the fact that you were one of many, the rest of whom are not before the court, who behaved most dishonestly from an early stage. Mr Nallen, if you lie with mangy dogs you will get up with fleas and that is how I am describing your friends’.
She fined Mr Nallen 1000 euros and sentenced him to six months imprisonment which will be suspended for 12 months on the condition that he gives the 3000 euros to Quinn Direct and repay the remaining 15,265 euros on or before January 1, 2011.
The applicant in his response to the s.107 notice as well as in his submissions to the Tribunal maintains that he was subjected to intimidation in Ireland. He further thought that a suspended sentence together with his reparation meant the offending was at the lower end of the scale and that the offences had effectively been dealt with. The applicant has claimed he wanted to leave the criminal influences in Ireland and make a fresh start in Australia.
The circumstances in which the non-compliance occurred were when the applicant failed to declare his criminal history in his 457 visa application, when he gave incorrect answers in his 186 ENS visa application and by production of his bogus Irish Police clearance in the 186 ENS visa application.
All these acts were deliberate and intentional. Not only did the applicant provide incorrect answers on his visa application but he procured a bogus Irish Police certificate and also deliberately submitted that.
There is no suggestion and it is difficult to see how these actions are not deliberate. The Tribunal finds this weighs heavily in favour of cancellation.
The present circumstances of this visa holder
At the time the applicant responded to the s.107 notice the applicant said he and his wife had a 7-month old baby who is an Australian citizen. Since then they have had a second child. As the applicant’s visa had been cancelled when this child was born, he is not a citizen.
Evidence provided to the Tribunal demonstrates the applicant has his own car dealership company. Tax returns, ASIC reports, organisational charts, profit and loss and balance sheets have been provided demonstrating the financial health of the company. The applicant confirmed in his evidence that he self-sponsored with Nallen Service Pty Ltd as the sponsor for his 186 ENS visa. The business trades as Right Price Motors Perth.
The applicant’s wife said in her oral evidence that she worked full time in the business with her husband doing all the paperwork. Her eldest child has just started kindergarten and the younger one is in day-care.
The applicant gave sworn evidence that there have not been any further charges, convictions or any other type of infringement since the drink driving offence in Newman.
Currently, their business appears profitable and employs other Australians. Evidence was also provided of their involvement in their local Rotary Club and the wife is part of the mother’s group at the day-care.
The Tribunal found the parties’ evidence regarding their children to be quite compelling. As noted above, as one child was born in Australia when they had permanent residency, that child is an Australian citizen. The other child was born after the cancellation and therefore has had his visa cancelled as a legal consequence of his father’s cancellation. The children of course don’t know any different lifestyle other than that provided in Australia. Whilst this could weigh in favour of not cancelling the visa, the Tribunal also notes the young age of the children and their inherent adaptability.
The Tribunal does accept that the applicant runs a successful motor vehicle business and has made active contributions to the Australian economy. The business appears to run well and profitably. The Tribunal finds this weighs in favour of not cancelling the visa.
The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act
This part of the Act contains the obligations to fill in an application form or passenger card correctly, not to provide bogus documents, to notify of a change in circumstances where this makes an answer incorrect, and to provide particulars of incorrect answers.
There is no information before the Tribunal to indicate the applicant provided incorrect information that may have constituted non-compliance with section 107(2) of subdivision C of the Act or that he has not complied with any other requirements in relation to subdivision C of the Act.
The Tribunal finds this weighs slightly in favour of not cancelling the visa.
Any other instances of non-compliance by the visa holder known to the Minister
Apart from the non-compliance particularised in the s.107 notice, the Tribunal does not have evidence that demonstrates other instances of non-compliance.
Accordingly, the Tribunal finds there are no known instances of non-compliance and the Tribunal gives this some weight in favour of not cancelling the visa.
The time that has elapsed since non-compliance
The incorrect information was provided in March 2013 and also in May 2016. The Tribunal is not aware of any further instances of non-compliance since that time.
The Tribunal gives this weight in favour of not cancelling the visa.
Any breaches of the law since the non-compliance and the seriousness of those breaches
There is no evidence before the Tribunal showing the applicant has been convicted of any other breaches of the law or sanctions imposed.
The Tribunal gives this weight in favour of not cancelling the visa.
Any contribution made by the holder to the community
The evidence before the Tribunal demonstrates that the applicant has been gainfully employed since his and his wife’s arrival in Australia. They have established a business which appears to be successful and profitable.
They have two children who were both born here, one of whom is an Australian citizen.
Several character references were provided to the Tribunal from associates of the applicant and his wife in Australia. They all attest to his high level of professionalism and integrity when dealing with clients and other peers.
A reference from the applicant’s sister, Ms Aisling Gannon, states:
I provide this reference in full knowledge of Dermot’s convictions of for an insurance fraud charge in July 2010 and a drug conviction for possession of cocaine with intent to supply
The Tribunal notes the applicant has not at the date of its decision provided a valid Irish Police clearance and therefore is unable to verify if in fact he was convicted of cocaine possession in Ireland.
Another reference from Noel Murphy, an Irish friend refers to the bad decisions made in Ireland by the applicant. The applicant’s brother-in-law also refers to his convictions for insurance fraud and possession of cocaine. His uncle who was a former Irish guard also refers to the two convictions for fraud and cocaine possession.
All the family members attest to the good character of the applicant and how it was out of character for him to be involved in criminal activities.
The applicant had initially requested to have his uncle attend by telephone to give evidence but the Tribunal did not consider it necessary to talk to him.
The Tribunal accepts that the applicant and his wife and their two children have made a life for themselves in Perth. They appear to be as involved in the community as you can be whilst working full time and having two young children. They have started and operated a business profitably which has contributed to the Australian economy, providing employment not only for themselves, but also others, as well as paying taxes.
There is no suggestion of improper and/or criminal behaviour by the applicant since his arrival in Australia apart from one drink driving offence.
The Tribunal also had the benefit of being able to observe the applicant and his wife in the hearing (albeit by video). The applicant expressed his remorse for his previous actions and described how telling one lie snowballed to such an extent that he was unable to rectify it.
Ms Macguire was visibly distressed during the hearing describing the impact of the uncertainty surrounding the cancellation and the effect it had had on her and her husband.
The Tribunal accepts that the applicant has worked hard since arriving in Australia and continues to do so. This of itself is a contribution to the community. Furthermore, the family are involved with their local Rotary Club and other community organisations to the extent that their work and family commitments allow them to be.
The Tribunal gives this substantial weight in favour of not cancelling the visa.
Other circumstances

100. As stated above, the Tribunal may have regard to other circumstance, including those set out in departmental policy.
Whether there are mandatory legal consequences, such as whether cancellation would result in the visa holder being unlawful and subject to detention, or whether indefinite detention is a possible consequence of cancellation, or whether there are provisions in the Act which prevent the person from making a valid visa application without the Minister’s intervention
101. If the applicant’s visa is cancelled he will be an unlawful non-citizen and liable for detention under s.189 of the Act and removal under s.198 of the Act. Under s.197C of the Act, for the purposes of removal under s.198 it is irrelevant whether Australia has non-refoulement obligations or whether there has been an assessment of Australian’s non-refoulement obligations.
102. The applicant may be subject to section 48 of the Act preventing him from applying for further visas, he may not be permitted to work if granted a temporary visa for a specified period and he may be held in immigration detention.
103. Whilst these are all serious consequences, the Tribunal does not give them weight in favour of not cancelling the visa because they are the intended consequences of cancellation. Furthermore, the applicant, his wife and two children are all entitled to return to Ireland. Even though the state of travel with the ongoing pandemic is less certain at the moment, it is unlikely the applicant and his family would be subject to indefinite detention particularly if they demonstrate they are making genuine attempts to return to Ireland.
Whether there would be consequential cancellations under s.140
104. Under s.140 of the Act, if a person’s visa is cancelled under s.109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, the Minister may without notice to the other person cancel the person’s visa.
105. The applicant’s wife and younger child are both secondary visa holders. The older child was granted citizenship on 2 January 2017 and therefore is not subject to cancellation provisions. This is an unusual situation which clearly would have an adverse effect on the family should the decision be made to deport them. Should the family be placed in detention, the older child would be unable to be with them because Australian citizens are not subject to detention. Even though this is unlikely, it is still a possible legal consequence.
106. In the Tribunal’s opinion this is an unacceptable possibility and weighs heavily in favour of not cancelling the visa.
Whether any international obligations would be breached as a result of the cancellation, such as non-refoulement obligations, family unit principles or the obligation to consider the best interests of the child
107. The applicant is a citizen of the Republic of Ireland and has made no claim for a protection visa. There is no evidence and no suggestion that removal of the applicant would lead to a breach of Australia’s non-refoulement obligations.
108. The Tribunal gives this factor no weight either in favour of cancelling or not cancelling the visa.
Best interests of the child
109. Article 3 of the Convention on the Rights of the Child (Convention) requires that in all actions involving children, the best interests of the child shall be the primary consideration. In this case the applicant and his wife have two minor children, both of whom were born in Australia, the elder also being an Australian citizen.
110. As noted by the delegate both children are also Irish citizens having been born to Irish citizens who were born in Ireland.
111. There is no suggestion that if the cancellation were to remain that this family would be separated. They all have the right to live in Ireland. The fact that the older child is also a citizen of Australia is not of itself punishment should he return to Ireland with his parents. His Australian citizenship will remain and it is open to him to return to Australia when he is older or indeed as a dependent on his mother’s visa should she be granted her own visa.
112. There is no evidence demonstrating that the applicant would again be subject to criminal influences if he were to return to Ireland. In fact, there have been several character references from family members in Ireland indicating a close and loving family that would support he and his wife and their children.
113. Nevertheless, in treating the children’s best interests as a primary consideration, the Tribunal finds that not cancelling the visa is in the children’s best interests. Having said that, the Tribunal does not consider that their interests would be significantly affected when comparing a possible life in Ireland to that in Australia.
114. Accordingly, the Tribunal gives this factor no weight either in favour of cancelling or not cancelling the visa.
Other considerations
115. The applicant has raised an argument based on the spread on COVID-19 through Europe, England and Ireland and the risk to he and his family of returning to Ireland.
116. Nowhere in the world has seemed to escape the effects of COVID with some countries faring far worse than others with Australia having had relatively few fatalities and community transmission.
117. Evidence provided by the applicant discusses the high numbers of infections and deaths in Ireland from the virus.
118. The Tribunal acknowledges the comparative advantage of being in Australia during the time of the pandemic. However, the world is slowly being vaccinated now and infection rates are slowing.
119. Whilst the Tribunal is sympathetic to their fears, the risk of catching COVID of itself is not a reason to consider in cancelling the visa. As stated, vaccinations are being rolled out with many countries having large proportions of their population vaccinated. Indeed, it could be argued that Australia is behind other countries in this regard and therefore runs a greater risk of further outbreaks.
120. The Tribunal doesn’t give this factor any weight either in favour of or against its discretion to cancel the visa.
Section 375A Certificate
121. The Tribunal was provided with a section 375A Certificate regarding disclosure of certain information under section 375A of the Migration Act. That section prohibits the Tribunal from disclosing or providing information subject to the Certificate on the basis of public interest grounds.
122. At the hearing the applicant through his representative was provided with a copy of the Certificate and was invited to make submissions as to the Certificate’s validity. Extra time was provided for that response and although further submissions were received after the hearing, no submissions were made regarding the Certificate.
123. The Tribunal did provide the applicant with the gist of the information, namely that it related to an anonymous dob-in that resulted in the Department becoming aware of the online news article referring to the applicant and his convictions. In the delegate’s decision, this article was discussed and the applicant was aware of its contents.
124. The Tribunal is satisfied that the Certificate was valid and that any procedural obligations had been discharged.
Conclusion
125. The Tribunal has serious concerns about the applicant’s behaviour and his visa history.
126. The Tribunal has found that the applicant provided incorrect information in two separate visa applications and also provided a bogus document. There is no suggestion that the applicant didn’t know his Irish Police clearance was bogus with the Tribunal concluding that he deliberately and dishonestly procured and submitted the fraudulent document.
127. Some of the character witness statements referred to a conviction for possession of cocaine with an intention to supply. Neither the Department nor the Tribunal received a copy of the applicant’s genuine Irish Police clearance so this is unable to be verified.
128. The applicant’s explanation is that he thought a ‘suspended’ sentence didn’t count and he was an unwilling participant in the fraud. The sentencing judge’s remarks as reported don’t support this with Her Honour not being convinced that the applicant wasn’t involved from the beginning, doubting his car had been stolen.
129. There appears to be a lack of remorse by the applicant for his criminal behaviour and a strong willingness to not take responsibility for his actions. Furthermore, the fact that the applicant procured a bogus police clearance demonstrates he knew the seriousness of his offences or else he would have advised of his criminal history at the time of his visa applications.
130. There is a consistent and repeated pattern of behaviour by the applicant that has been wilfully dishonest and deceptive.
131. Balanced against this however are a number of factors. Firstly, the criminal offences took place in 2008 and 2009 and the applicant was convicted and sentenced in 2010. The Tribunal finds based on the available evidence that no further offending has occurred since that time. During that time the applicant and his wife have moved to Australia, set up a successful business, had two children and become part of their community.
132. The applicant’s explanation that he started lying and continued because he didn’t know how to stop or rectify the situation, whilst disappointing, is nonetheless understandable human behaviour.

133. The applicant admits that he lied to the Department and also provided a bogus document. The Tribunal considers that the responsibility to Australia and its government agencies to be honest is paramount and a fundamental pillar of our society. Having said that, attempts to rehabilitate and contribute to society also should be considered. In this regard, the Tribunal is sympathetic to the applicant and mindful of the contribution that he and his family have made to Australia.
134. This has been a difficult decision and one that has not been made easily. However, on balance the Tribunal finds that the factors that weigh against its discretion to cancel the visa are greater than those in favour of the discretion to cancel.
135. The non-compliance in this case is of particular gravity. It is unknown whether the applicant would have been granted the visa if he’d been honest in disclosing his convictions. At that time a decision may have been made that he was of good character.
136. The Tribunal has considered all the factors that weigh against cancelling the visa and in these circumstances is not prepared to exercise its discretion to cancel the visa. The applicant and his wife have a young family and have made a significant financial investment in their business and therefore Australia. They have been contributing members of society and have not had any further convictions (other than a drink driving offence). They genuinely wish to raise their family here and are passionate in their desire to live as Australians.
137. The Tribunal recognises that this is a second chance for the applicant and his family and expects that they will continue to contribute to Australia and uphold the values of our country.
138. Having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.
DECISION
139. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the first named applicant’s Subclass 186 - Employer Nomination Scheme visa.
140. The Tribunal has no jurisdiction with respect to the other applicant.
Michelle East
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.

97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).

98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.

103Bogus documents not to be given etc.
A non‑citizen must not give, present, [produce]* or provide to an officer, an authorised system, the Minister, the Immigration Assessment Authority, or the Tribunal performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, [produced]* or provided.
* This wording applies to documents given, presented, produced or provided on or after 4 November 2014: Schedule 7 to Counter Terrorism Legislation Amendment (Foreign Fighters) Act 2014 (No.116, 2014).

107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a) giving particulars of the possible non‑compliance; and
(b) stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or

(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and

(c) stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and

(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.

(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.

108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.

109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

[2021] AATA 2895

12 July 2021

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