Ho (Migration)

This matter concerned an appeal by Mr Ho against the cancellation of his Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme), temporary residence transition stream. The dispute arose from the submission of a fraudulent English language test result and certificate as part of his visa application. The case was heard by Michael Cooke.

The primary legal issues before the court were whether Mr Ho had failed to comply with sections 101(b) and 103 of the *Migration Act 1958* (Cth) by providing a bogus document and incorrect information, and if so, whether his visa should be cancelled. The court was required to consider Mr Ho's explanation for the non-compliance, including his reliance on a migration agent, and to determine if he had demonstrated "reckless indifference" to the truth of the information provided.

The court found that Mr Ho had indeed failed to comply with the relevant sections of the Act. While Mr Ho claimed he was unaware of the fraudulent document and had provided an authentic, albeit unsuccessful, English test result to his agent, the Tribunal was satisfied that he had displayed "reckless indifference" to his agent acting unlawfully or dishonestly by submitting a bogus document and incorrect information. This finding was based on the totality of the evidence, including Mr Ho's oral evidence and the fact that the correct information regarding his English language proficiency was "radically different" from what was provided. The court applied the principles established in *Kaur v MIBP* [2019] FCAFC 53 and *Gill v MIBP* [2016] FCAFC 142 regarding the meaning of "reckless indifference" in such contexts.

The Tribunal concluded that grounds existed to cancel Mr Ho's visa under section 109 of the Act, and that the discretionary power to cancel the visa should be exercised. The court set aside the decision under review for the first applicant, Mr Ho, indicating that the visa cancellation was not affirmed. However, the text provided does not detail the outcome for any other applicants who may have been part of the family unit.