Nallen (Migration)

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.