2113572 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 186 Employer Nomination Scheme visa held by the applicant. The dispute arose from allegations that the applicant had provided incorrect answers in her visa application and submitted a bogus document, specifically altered bank statements showing an incorrect residential address. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation (NOICC) based on alleged non-compliance with sections 101 and 103 of the Migration Act 1958.

The Tribunal was required to determine whether the NOICC was valid, whether the applicant had indeed failed to comply with the specified provisions of the Act, and if so, whether the visa should be cancelled. The core legal issues revolved around the interpretation and application of sections 101 (incorrect answers) and 103 (bogus documents) of the Migration Act, and the procedural requirements under section 107 for issuing a valid notice of intention to cancel a visa. The Tribunal also considered the discretionary nature of visa cancellation, even where non-compliance is established, and the factors that should be weighed in exercising that discretion.

The Tribunal found that while the NOICC contained sufficient particulars to identify the alleged non-compliance, it ultimately set aside the cancellation decision. Although the Tribunal was satisfied that the applicant had technically breached sections 101 and 103, it concluded that the applicant was not complicit in the non-compliance. The evidence indicated that the incorrect information and altered documents were provided by the primary applicant without the applicant's knowledge or consent. The Tribunal gave significant weight to the applicant's serious health conditions, including suicidal ideation, the substantial impact cancellation would have on her and her Australian citizen children, her lengthy history in Australia without other compliance issues, and her remorse. These factors, combined with the delay in the Department's action and the applicant's lack of complicity, led the Tribunal to exercise its discretion not to cancel the visa.