Hennessy (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of Hennessy, concerning the cancellation of a Subclass 186 Employer Nomination (Permanent) visa. The applicant, Ms. Hennessy, had been granted this visa based on her employer's nomination. The Department of Home Affairs subsequently cancelled the visa, alleging that the information provided by the employer regarding Ms. Hennessy's employment history and the description of her duties was not accurate or complete. This decision was challenged by Ms. Hennessy before the AAT.

The primary legal issue before the Tribunal was whether the Department had lawfully exercised its power to cancel Ms. Hennessy's visa under the *Migration Act 1958* (Cth). Specifically, the Tribunal had to determine if the employer's nomination was based on information that was not true, accurate, or complete, as required by the relevant visa provisions. This involved scrutinising the employment records of the nominating employer and comparing them with the information provided by Ms. Hennessy, including her incoming passenger card.

In its reasoning, the Tribunal analysed the evidence presented, including the employer's records and the applicant's statements. It applied the principles of administrative law, focusing on the evidential burden and the standard of proof required to establish that the grounds for cancellation were met. The Tribunal considered whether the discrepancies or omissions in the provided information were significant enough to warrant the cancellation of the visa, having regard to the legislative intent behind the Employer Nomination Scheme visa. The Tribunal ultimately found that the evidence did not establish that the employer's nomination was based on information that was not true, accurate, or complete.

Consequently, the Tribunal set aside the decision of the Department of Home Affairs to cancel Ms. Hennessy's Subclass 186 visa and substituted a decision affirming the visa grant.