Australian Immigration Daily News

The saying “truth is stranger than fiction” is popular because it is constantly being confirmed by our everyday experience.  As RMAs will know from their daily work, this time-honored expression certainly applies to the realm of migration law! There are constantly incredible, amazing and unlikely stories!

A recent case from the Federal Circuit Court, Vata v Minister for Immigration & Anor (2015) FCCA (26 June 2015) is a perfect illustration!

In this case, the visa holder, Mr Vata, was successful in getting the Department’s cancellation of his permanent residency visa overturned.

It would be hard to imagine a person with a more unusual migration history than Mr Vata’s! That history, as recounted in the judgment of the Federal Circuit Court, was as follows:

Mr Vata was born in Albania. His name at birth was “Marjan Vata”.  In 1990, he moved to Greece and adopted a “Greek-sounding” name, “Jani  Petro” in order to avoid perceived discrimination against Albanians. He married a Greek woman in 1998, and applied for and was granted a provisional partner visa to migrate to Australia in the name “Jani Petro”. However, by 1999, this relationship had broken down, and his application for a “permanent” partner visa was refused. He then applied for a protection visa, which was also refused.  He was placed in immigration detention in Melbourne, but escaped and moved to Sydney. However, he was discovered by immigration officials in 2000 and was deported back to Albania.

The next chapter in Mr Vata’s saga was that he obtained a Greek passport in the name of “Georgios Zakakis”, which he used to travel back to Australia.  Following his return, he used the name “Mario Zefis”. He then met and married another woman, with whom he had a child. However, only 2 weeks after this child was born, he was again deported from Australia.

As if this was not enough, there was yet another chapter to the story! In 2004, he returned to Australia again on another Greek passport in the name of “Nikolaos Liakos”.  In 2005 he applied for a 457 visa under this name. Then in 2006 he went back to Albania to visit his dying mother, travelling on a different false passport. In 2009, he was granted permanent residency in Australia under the Employer Nomination Scheme. He and his second wife had two more children, and he bought a house and established a business in Australia as a painter and a decorator.

For readers who may be having some difficulty following this lengthy history, it should be noted that Mr Vata entered Australia under three different names (Jani Petro, Georgios Zakakis and Nikolaos Liakos); escaped from immigration detention, was deported twice, had two visa applications refused, was granted three other visas, travelled to Albania from Australia and returned on another false passport, was married twice and had three children!!!

I am practically running out of breath reciting this history, but “believe it or not”, there is more, and this next chapter in Mr Vata’s story is what is really of greatest interest professional interest to RMAs.  In 2013, the Department moved to cancel Mr Vata’s permanent residency visa.  As will be discussed below, Mr Vata’s challenge to this visa cancellation action was successful in the Federal Circuit Court only because a provision of the Migration Regulations used the word “a” instead of the word “the”! 

Is it any wonder that the name “Houdini” should come to mind when thinking about what happened in this case?

The background of the visa cancellation was that in 2012, the Department approved a request to have its records amended to reflect that the person known to the Department as Nicholaos Liakos was actually “Jani Vata” (the visa holder legally changed his name to Jani Vata in 1996, before he first came to Australia in 1998 under the name of Jani Petro.

A year after amending its records, the Department commenced action to cancel Mr Vata’s permanent residency visa.  The basis for the cancellation action was that when Mr Vata lodged his application for permanent residency under the Employer nomination Scheme, he did not respond to a question asking about other names by which he had been known, falsely stated that he had never been removed or deported from Australia, filed the application under a false name (as Nicholaos Liakos) and falsely stated that all the information on his ENS application was complete, correct and up to date in every particular.

The authority that was relied on by the Department to support the cancellation action was section 109 of the Migration Act.  This section empowers the Department to cancel a visa after deciding that there was non-compliance by the holder of a visa with section 101 of the Act  (which requires that all answers given on a visa application be correct).

It is a pre-condition of the exercise of the visa cancellation power under section 109(c) that the Minister (or his or her delegate) have regard  “to any prescribed circumstances”.  These “prescribed circumstances”  are provided at Regulation 2.41.  This Regulation states (at 2.41(c)) that one of the matters that must be taken into account prior to the cancellation of a visa is “whether the decision to grant a visa…was based wholly or partly, on incorrect information” (emphasis added!).

It was the way that Regulation 2.41(c) is worded that literally “saved” Mr Vata’s visa. 

Mr Vata’s case came before the Federal Circuit Court after the MRT affirmed the Department’s decision to cancel his visa. The Court came to the conclusion that in considering Mr Vata’s review application, the MRT had “failed to ask the correct question”. Accordingly, the Court determined that the MRT had committed “jurisdictional error” and overturned the cancellation decision.

The Court found that the MRT had fallen into error by focusing on the question of whether “the” visa that was granted in the name of “Nikolaos Liakos” would have been granted if the Department had been aware that his true name was “Jani Vata”.  This is where the fact that  Regulation 2.41(c) uses the word “a” in reference to the term “visa” rather than the word “the” became critical. It was the view of the Federal Circuit Court that the question that the MRT should have asked was whether, if the Department had been aware of the applicant’s true name, it would have been likely to grant him “a” visa – again, not whether the Department would have been likely to have granted the applicant the visa in the name of “Nikolaos Liakos”. Or, as was submitted by Mr Vata, the correct question for consideration by the MRT was actually whether the correct information on the visa application (that the applicant’s true name was “Jani Vata”) would have disclosed that he was ineligible for the ENS permanent residency visa.

The Court’s ultimate conclusion was that because the “prescribed circumstances” of Regulation 2.41(c) had not been properly considered, the preconditions to the exercise of the visa cancellation power had not been satisfied and the visa cancellation thus could not be sustained.

The outcome in this case demonstrates, once again, just how important the exact words that are used in the migration legislation are to the correct interpretation of the legislation.

I can only conclude by observing that the outcome of this case was certainly a “close escape” that would have done Harry Houdini proud!  And the decision does have the very happy result that, despite all his travails, Mr Vata will be able to remain in Australia with his wife and children.

This article was prepared by Michael Arch, Concordia Pacific Migration Lawyers, Email: This email address is being protected from spambots. You need JavaScript enabled to view it. , Tel: (02) 8068 8837