KHURANA (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the visa of Mr. Khurana, the first applicant. The dispute arose from allegations that Mr. Khurana had provided incorrect information and a bogus document in support of his application for a Subclass 189 Skilled Independent visa. The Tribunal also noted it had no jurisdiction concerning secondary applicants.

The primary legal issue before the Tribunal was whether Mr. Khurana had failed to comply with sections 101 (visa applications to be correct) and 103 (bogus documents not to be given) of the Migration Act 1958, as particularised in the notice issued under section 107. If such non-compliance was established, the Tribunal then had to consider whether the visa should be cancelled.

The Tribunal reasoned that while Engineers Australia had initially issued a positive skills assessment on 4 August 2014, which Mr. Khurana relied upon for his visa application lodged on 8 December 2014, this assessment was later invalidated by Engineers Australia on 12 October 2016 due to plagiarism. However, the Tribunal found that at the time of the visa application lodgement, Mr. Khurana held a valid positive skills assessment. Furthermore, on 3 May 2017, Engineers Australia issued a further positive skills assessment, confirming Mr. Khurana met the requirements for the occupation of Electrical Engineer. The Tribunal was not persuaded that the initial skills assessment was bogus at the time of lodgement or that Mr. Khurana had deliberately provided incorrect information, given he possessed a positive assessment when he applied and subsequently obtained another.

Consequently, the Tribunal concluded that there was no non-compliance by Mr. Khurana as described in the section 107 notice, meaning the discretionary power to cancel his visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel Mr. Khurana's Subclass 189 Skilled - Independent visa.