KHAN (Migration)

The Administrative Appeals Tribunal (AAT) considered a migration matter involving Mr. Khan, who held a Subclass 117 (Orphan Relative) visa. The dispute arose from the delegate's intention to cancel Mr. Khan's visa based on the submission of a fraudulent document. The AAT was tasked with determining whether the delegate was entitled to issue the notice of intention to cancel, whether the notice itself was valid, and if so, whether Mr. Khan had failed to comply with the relevant provisions, and finally, how the discretion to cancel the visa should be exercised.

The legal issues before the Tribunal included whether the delegate had formed the necessary state of mind to engage section 107 of the Migration Act 1958 (Cth), which pertains to the cancellation of visas. This involved assessing if the delegate reasonably believed there had been non-compliance with a provision of the Act. Furthermore, the Tribunal had to determine the validity of the notice of intention to cancel issued to Mr. Khan, specifically whether it provided adequate particulars of the alleged non-compliance. If the notice was deemed valid, the Tribunal would then consider whether Mr. Khan had indeed failed to comply with the Act by submitting a bogus document, and if so, how the discretion to cancel the visa should be exercised, taking into account all relevant factors and any response provided by Mr. Khan.

The Tribunal found that while the taskira submitted by Mr. Khan was a "bogus document" within the meaning of section 5(1)(b) of the Act, Mr. Khan was not aware of this fact at the time of submission. Despite the document being bogus, the Tribunal was satisfied that the information it contained regarding Mr. Khan's identity and approximate age was correct. The Tribunal concluded that the delegate had reached the necessary state of mind to engage section 107 because the department had been provided with a bogus document. However, the Tribunal found the notice issued to be defective. Even if the notice had been valid, the Tribunal determined that, based on the material before it, the discretion to cancel the visa should not be exercised.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Khan's Subclass 117 visa.