Chouhan (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Department of Home Affairs to cancel the Subclass 190 – Skilled – Nominated visa held by the first applicant, Mr. Chouhan. The dispute arose from allegations that Mr. Chouhan provided a bogus work reference letter from Zoom Auto Services Pty Ltd to VETASSESS, which was used to obtain a successful Skilled Migration Assessment Result. This, in turn, was a basis for the Department's decision to cancel his visa. The Tribunal noted that the other applicants' visas were automatically cancelled as a consequence of the first applicant's cancellation, and therefore, the Tribunal lacked jurisdiction concerning those other applicants.

The primary legal issue before the Tribunal was whether Mr. Chouhan had failed to comply with section 103 of the *Migration Act 1958* (Cth) by providing a bogus document, specifically a false and misleading work reference letter. This alleged non-compliance was particularised in the Notice of Intention to Consider Cancellation (NOICC) as the Department's view that Zoom Auto Services Pty Ltd was not operating a mechanics workshop at its stated business premises and that Mr. Chouhan was not working as a motor mechanic there during the claimed period. The Tribunal was required to determine if the evidence supported these allegations of non-compliance.

The Tribunal reasoned that while the Department had followed the correct procedural steps in issuing the NOICC under section 107 of the Act, the evidence presented by Mr. Chouhan demonstrated that he was, in fact, working as a motor mechanic at Zoom Auto Services Pty Ltd. The Tribunal found ample evidence, including an employment agreement, payslips, superannuation statements, and written statements from former flatmates, which supported Mr. Chouhan's claim of employment. Consequently, the Tribunal concluded that there was no non-compliance by Mr. Chouhan in the manner described in the NOICC.

As the Tribunal found no non-compliance, the discretionary power to cancel the visa under section 109 of the Act did not arise. Accordingly, the Tribunal set aside the Department's decision to cancel Mr. Chouhan's visa and substituted a decision not to cancel it.