Visa cancellation appeal for Nigerian man convicted of fraud

On 10 February 2021, we achieved our first victory of the year in the Federal Court in O v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 84.

Mr O was involved in a fraudulent scheme perpetrated on a property developer. His associates from Nigeria managed to gain access to an email address used by a landscaping company which they used to forward invoices to the property developer for work purportedly done by that landscaping company. Those invoices contained Mr O’s bank details and he received several payments, totalling over $30,000.00, into his bank account. The scheme was uncovered when the landscaping company actually invoiced the property developer for its work. Mr O was promptly arrested by police and charged with a fraud offence.

Mr O was sentenced to 3 years’ imprisonment for the fraud. The Minister mandatorily cancelled his visa under s 501(3A) of the Migration Act 1958 (Cth). Mr O applied for revocation of the cancellation of his visa. The Minister refused to revoke the cancellation and Mr O applied to the Administrative Appeals Tribunal for review of that decision. The Tribunal concluded that the Minister had made the correct or preferable decision and affirmed the decision not to revoke Mr O’s visa.

Mr O then engaged our services to apply to the Federal Court for judicial review of the Tribunal’s decision. The Federal Court allowed Mr O’s application on the basis of our arguments, finding that the Tribunal had made 2 jurisdictional errors. The first error was that the Tribunal misconstrued Direction 79 and gave negative weight to Mr O’s time spent in Australia. The second error was that the Tribunal failed to properly engage with representations made by Mr O about why the cancellation of his visa ought to be revoked.