Huang (Migration)

This matter concerned an appeal by Huang (the applicant) against the cancellation of his Temporary Skill Shortage (Class GK) visa, subclass 482. The cancellation was based on allegations of providing incorrect information and a bogus document, contrary to sections 101 and 103 of the Migration Act 1958 (Cth). The applicant contended that the information provided was not incorrect and that the document in question was not bogus.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of sections 101 and 103 of the Act, as particularised in the notice issued under section 107. This involved determining whether the applicant had provided incorrect answers in his visa application or supplied a bogus document, and if so, whether the visa cancellation was warranted. The Tribunal also considered the evidence presented by the applicant, including a MINTRAC skill assessment, an offer of employment, and various supporting statements and letters.

The Tribunal found that while the notice issued under section 107 complied with statutory requirements and the delegate had reached the necessary state of mind to engage section 107, the evidence did not establish non-compliance by the applicant. Specifically, the Tribunal was not satisfied that the applicant had provided incorrect information or a bogus document. The Tribunal noted that the information provided by a junior HR worker during a phone call, which suggested the applicant had never worked for the company and that the author of a working certificate was not authorised, was contradicted by other evidence. This included a statement from the factory director, who was authorised to issue such certificates, and evidence indicating no practical difference between employee and contractor status in that context.

Consequently, the Tribunal concluded that the discretionary power to cancel the applicant's visa did not arise. The decision under review was set aside, and the Tribunal substituted a decision not to cancel the applicant's visa. The Tribunal also noted that it had no jurisdiction with respect to other applicants in the matter.