Hu (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 187 (Regional Sponsored Migration Scheme) visa of the applicant, Mr. Hu. The cancellation was based on the ground that the applicant had provided incorrect information in his visa application, specifically concerning his English language proficiency, by submitting a bogus IELTS Test Report where the test was undertaken by an imposter.

The Tribunal was required to determine whether the applicant had indeed failed to comply with the requirements of the Migration Act 1958, and if so, whether the discretion to cancel his visa should be exercised. The legal issues centred on the provision of a bogus document and the subsequent consideration of the applicant's present circumstances in exercising the cancellation discretion.

The Tribunal found that there had been non-compliance by the applicant as described in the notice given under s.107 of the Act. However, in exercising its discretion, the Tribunal gave considerable weight to several factors. These included the applicant's significant social and educational ties to Australia, his status as a valued employee for his sponsoring employer in regional Australia, and the potential impact on his children. Crucially, the Tribunal noted that the applicant's youngest child was an Australian citizen, and requiring the family to return to China would necessitate the child renouncing his Australian citizenship to access essential state services like education and healthcare, a consequence the Tribunal found contrary to the purpose of the Act.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 187 visa. The Tribunal noted that this decision was made marginally in the applicant's favour, acknowledging the seriousness of the breach of sections 101(b) and 103 of the Act.