2114277 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 186 Employer Nomination Scheme visa. The applicant had previously been granted a Temporary Work (Skilled) (subclass 457) visa and subsequently applied for the Subclass 186 visa, providing an Indian passport, marriage certificate, and driver's licence as evidence of her identity. The Departmental Forensic Facial Image Examiner reported that facial image comparisons indicated the applicant was the same person as an individual who had previously applied for a Student visa under an alias.

The legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) concerning the provision of correct information and the use of bogus documents in her visa applications, and consequently, whether the Minister's power to cancel her visa under section 109 of the Act had been validly exercised. Specifically, the Tribunal considered whether the notice of intention to consider cancellation issued under section 107 of the Act was valid and whether the evidence supported a finding of non-compliance with sections 101 and 103 of the Act.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. While the facial image comparison suggested the applicant may have provided incorrect identity information, the Tribunal, having regard to other relevant circumstances, particularly the best interests of the applicant's Australian citizen children, concluded that the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 186 visa.