Cai (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant for a Skilled Independent (Subclass 189) visa and the Department of Home Affairs. The dispute arose from the applicant providing incorrect information in their visa application, specifically concerning the authenticity of documents evidencing cohabitation. While some documents were found to be bogus, the applicant claimed to be unaware of this fact.

The Tribunal was required to determine whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) and, if so, whether the visa should be cancelled. A key issue was whether the applicant's lack of awareness regarding the bogus documents constituted a mitigating circumstance that warranted a decision not to cancel the visa, despite the non-compliance.

In its reasoning, the Tribunal acknowledged the applicant's non-compliance as described in the notice given under section 107 of the *Migration Act 1958* (Cth). However, after considering all relevant circumstances, including the applicant's employment as a nurse, which contributes to the community and may fill a skills shortage, the Tribunal concluded that the visa should not be cancelled. The Tribunal found that the applicant's lack of awareness of the bogus documents was a significant factor in this determination.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 189 - Skilled - Independent visa.