ALI (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to cancel the visa of an applicant, a citizen of Pakistan. The applicant had been granted a Subclass 186 Employer Nomination Scheme visa in February 2017, which was later cancelled on the grounds that he had provided incorrect information regarding his previous employment history and had submitted a bogus document. The dispute centred on the existence and operational status of the "Lasani Hotel Restaurant and Marriage Hall" in Pakistan, where the applicant claimed to have worked as a manager between 2003 and 2007, a period crucial for meeting the visa requirements.

The Tribunal was required to determine whether the applicant had provided incorrect answers to questions in his visa application, thereby breaching section 101(b) of the Migration Act 1958, and whether he had provided a bogus document, contravening section 103 of the Act. Specifically, the court needed to ascertain if the Lasani Hotel Restaurant and Marriage Hall existed and was operational during the claimed period of employment, and if the employment reference provided by the applicant was therefore a bogus document. The validity of the cancellation notice itself was also implicitly in question, as the exercise of cancellation powers under section 109 is conditional on the issuance of a valid notice.

The Tribunal found that the Department's cancellation notice was not valid because it failed to provide sufficient particulars of the evidence upon which it relied to conclude that the hotel did not exist. While the Department's post in Islamabad had initially reported an inability to verify the business's existence, subsequent evidence, including an affidavit from a former employee and a telephone conversation with that individual, confirmed that the Lasani Hotel did exist and was operational in 2003. Furthermore, the Tribunal considered evidence that the business had ceased operations in 2015, which did not negate its existence during the applicant's claimed period of employment. The Tribunal concluded that the applicant's employment history, as supported by the evidence, was not incorrect and the employer's certificate was not a bogus document.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 186 visa. The Tribunal found that the applicant had not breached the relevant provisions of the Migration Act by providing incorrect information or a bogus document, and therefore the grounds for cancellation were not established.