Truscott (Migration) - [2023] AATA 1836

Truscott (Migration) [2023] AATA 1836 (8 March 2023)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT:  Mr Nick James Truscott
REPRESENTATIVE:  Mr Nigel James Dobbie
CASE NUMBER:  2209255
HOME AFFAIRS REFERENCE(S):          BCC2022/1598025
MEMBER:Kira Raif
DATE:8 March 2023
PLACE OF DECISION:  Sydney
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.
Statement made on 8 March 2023 at 14:13pm

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) – incorrect information in Incoming Passenger Card – criminal convictions in Australia – behaviour concern non-citizen – businesses employing Australian staff – lengthy residence in Australia – relationship with an Australian resident – contribution to the community – decision under review set aside
LEGISLATION
Migration Act 1958, ss 5, 32, 48, 101-105, 107, 109, 140, 166
Migration Regulations 1994, rr 2.41, 3.02
CASES
Liu v MIMIA [2003] FCA 1170 MIAC v Khadgi (2010) 190 FCR 248
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 Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a national of New Zealand, born in November 1987. He was last granted the Special Category Class TY visa on 27 March 2017. On 11 May 2022 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that he did not comply with s. 101 of the Act. The applicant provided his response to the NOICC and his visa was cancelled. The applicant seeks review of the delegate’s decision.
The applicant appeared before the Tribunal on 8 March 2023 to give evidence and present arguments. The Tribunal also received oral evidence from the applicant’s partner. Several other witnesses attended the hearing to present oral evidence but the Tribunal did not consider it necessary to take oral evidence from them. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
Relevant law
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…

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.

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Details

AGLC: Truscott (Migration) [2023] AATA 1836
Case: [2023] AATA 1836
Decision Date: 8 March 2023

CaseChat Overview and Summary

The Administrative Appeals Tribunal considered a migration matter involving an applicant whose Subclass 444 (Special Category) visa was subject to cancellation. The dispute arose from alleged non-compliance related to incorrect information provided on an Incoming Passenger Card, coupled with criminal convictions in Australia. The applicant was identified as a behaviour concern non-citizen, but also had established significant ties to Australia, including operating businesses that employed Australian staff, a lengthy period of residence, a relationship with an Australian resident, and contributions to the community.

The primary legal issue before the Tribunal was whether, despite the grounds for cancellation, the applicant's Subclass 444 visa should ultimately be cancelled, having regard to all relevant circumstances. This required the Tribunal to weigh the seriousness of the non-compliance and criminal history against factors demonstrating the applicant's integration into Australian society and their positive contributions.

The Tribunal found that while there was non-compliance as described in the notice given under section 107 of the Migration Act 1958 (Cth), it concluded that the visa should not be cancelled. In reaching this decision, the Tribunal considered the totality of the circumstances, including the applicant's lengthy residence, employment of Australian staff, relationship with an Australian resident, and community contributions. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s 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

The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s 107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.DECISION The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.Kira RaifSenior Member

Ratio Decidendi

Legal Principle Established

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