Kumar (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of Mr. Kumar. The dispute arose from allegations that Mr. Kumar had provided bogus documents and incorrect information regarding his welding and fabrication qualifications in support of his Subclass 457 visa application. The Departmental delegate had concluded that certificates provided by Mr. Kumar were not genuine, leading to the cancellation of his visa.

The primary legal issue before the Tribunal was whether Mr. Kumar had failed to comply with sections 101 and 103 of the Migration Act 1958, as particularised in the notice issued under section 107. Specifically, the Tribunal had to determine if the certificates provided were indeed bogus and if this constituted the provision of incorrect information, thereby engaging the Minister's power to cancel the visa under section 109.

The Tribunal reasoned that while the Department's initial integrity checks, which involved contacting the Fiji National University, suggested the provided certificates were not valid, these checks were based on inquiries made to the Fiji National University after its establishment in 2010. Mr. Kumar's studies, however, were completed in 2008 when the institution was known as the Fiji Institute of Technology. The Tribunal found that Mr. Kumar had subsequently provided substantial evidence from various sources, including the Fiji National University, his employer, and a VETASSESS assessment, demonstrating that he had indeed completed the relevant studies and possessed the necessary skills. The Tribunal also considered the best interests of Mr. Kumar's two young children, who were integrated into the Australian school system, and the significant contribution Mr. Kumar made to his employer, which had nominated him for permanent residency.

Consequently, the Tribunal set aside the decision to cancel Mr. Kumar's Subclass 457 visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction concerning any other applicants.