Buckley (Migration)

This matter concerned an appeal by the applicant, a citizen of Ireland, against the cancellation of his subclass 186 Employer Nomination Scheme visa. The applicant had been granted the visa on 25 February 2014, sponsored by Murphy Pipe and Civil Constructions Pty Ltd (Murphy Pipe and Civil) for the position of Program or Project Administrator. The Department of Immigration and Border Protection initiated cancellation proceedings under s.109 of the *Migration Act 1958* (Cth) following an audit of Murphy Pipe and Civil, which had resulted in a sponsorship bar being imposed on the company. The Department alleged that the applicant had provided incorrect information and bogus documents in support of his visa application.

The primary legal issues before the court were whether the delegate of the Minister was satisfied that the applicant had failed to comply with the relevant provisions of the Act, specifically ss.101 and 103, by providing incorrect information or a bogus document. This involved determining whether the applicant's role as described in his application and supporting documentation aligned with the ANZSCO description of a Project Administrator, and whether the information provided by Murphy Pipe and Civil constituted a bogus document. The court also considered whether the notice of intention to cancel the visa was validly issued and, if so, whether the grounds for cancellation were established.

The court reasoned that the cancellation power under s.109 of the Act is engaged only if the visa holder has failed to comply with specific provisions, such as providing correct information or not submitting bogus documents. The court noted that the onus is on the decision-maker to be satisfied that the facts grounding the exercise of this power exist, rather than on the visa holder to prove their non-existence. Upon reviewing the applicant's evidence regarding his varied responsibilities, including project planning, problem resolution, supervision of personnel and resources, and reporting to senior management, the court found that his duties were consistent with the role of a Project Administrator. Consequently, the court concluded that the applicant had not provided incorrect information or a bogus document, and therefore the ground for cancellation under s.109 had not been made out.

The court ordered that the decision to cancel the applicant's visa be set aside.