1614279 (Migration)

The Administrative Appeals Tribunal considered the decision to cancel the applicant's Subclass 457 (Temporary Work (Skilled)) visa. The dispute centred on whether the applicant had complied with his obligations under the *Migration Act 1958* (Cth) and, if not, whether his visa should be cancelled.

The Tribunal was required to determine if the applicant had failed to comply with section 103 of the Act by providing a bogus document, specifically an IELTS Test Report Form. If non-compliance was established, the Tribunal then had to consider whether to exercise its discretion to cancel the visa under section 109(1) of the Act, having regard to the prescribed circumstances and relevant government policy.

The Tribunal found that the applicant had indeed provided a bogus document, an IELTS Test Report Form, which was contrary to section 103 of the Act. This conclusion was based on a facial image comparison report indicating the photograph on the IELTS form was of a different person, and crucially, the applicant's admission at the hearing that the document was bogus. The Tribunal was satisfied that the notice issued under section 107 of the Act complied with statutory requirements and that the delegate had reached the necessary state of mind to engage that section. In considering the discretionary power to cancel the visa, the Tribunal reviewed the applicant's explanation for the non-compliance, which involved allegations of forgery by his migration agent. However, the Tribunal noted that these claims were not raised in the applicant's initial response to the Department. Having regard to all the relevant circumstances, including the prescribed factors under regulation 2.41 and departmental policy, the Tribunal concluded that the visa should be cancelled.

The Tribunal affirmed the decision to cancel the applicant's Subclass 457 visa.