Chaudhary (Migration)

The Administrative Appeals Tribunal considered the case of Chaudhary, who sought review of a decision to cancel their Subclass 190 Skilled Nominated visa. The delegate had formed the view that the applicant had provided, or caused to be provided, a bogus document, leading to the cancellation of the visa.

The primary legal issue before the Tribunal was whether the delegate had reached the requisite positive state of mind regarding the applicant's alleged non-compliance with the *Migration Act 1958* (Cth) before exercising the power to cancel the visa. Specifically, the Tribunal had to determine if the information provided by the applicant was of sufficient probative value to establish that a bogus document had been supplied.

The Tribunal reasoned that the delegate's concerns about the verifiability of the information provided by the applicant did not, in themselves, possess sufficient probative value to satisfy the threshold for cancellation. The Tribunal concluded that it was not satisfied that the applicant had failed to comply with the requirements of the Act in the manner alleged in the notice given under section 107. Consequently, the discretionary power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 190 Skilled Nominated visa.