Nallen (Migration) - [2021] AATA 2895

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…

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 Nallen (Migration)

Details

AGLC: Nallen (Migration) [2021] AATA 2895
Case: [2021] AATA 2895
Decision Date: 12 July 2021

CaseChat Overview and Summary

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of an applicant, Nallen. The dispute concerned allegations that Nallen had provided incorrect information and a bogus document in relation to his visa applications, specifically his 457 visa and his cancelled 186 Employer Nomination Scheme visa.

The Tribunal was required to determine whether a valid notice under section 107 of the Migration Act 1958 (Cth) had been issued, whether grounds for cancelling Nallen's visa had been established under section 109 of the Act, and whether, having regard to the prescribed circumstances in regulation 2.41 of the Migration Regulations 1994, his visa should be cancelled. The validity of the section 107 notice was central, as the power to cancel a visa under section 109 is conditional on the issuance of a valid notice.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 107, based on an online news article detailing Nallen's offending and the referral of his Irish police clearance, which was subsequently declared bogus. The Tribunal was satisfied that the section 107 notice complied with statutory requirements. It noted that the incorrect information and bogus document were directly relevant to the assessment of Nallen's character and Public Interest Criterion 4001. While this weighed in favour of cancellation, the Tribunal also considered Nallen's explanation for his offending, which involved claims of intimidation by organised criminals. However, the Tribunal also noted that the Irish court had found Nallen not to be a credible witness and doubted his account of events.

Ultimately, the Tribunal concluded that the decision to cancel Nallen's visa should be set aside.

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 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.