Laxman (Migration)

This matter concerned an appeal by a visa applicant against the cancellation of their Skilled Independent (Permanent) (Class SI) visa, Subclass 189. The Department had cancelled the visa on the grounds that the applicant had provided incorrect information and a bogus document in their application, specifically regarding claimed employment and associated work experience used for a skills assessment. The applicant contended that their employment was as a contractor, and provided an Australian Business Number (ABN) to the employer, whose company no longer exists.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with sections 101 and 103 of the *Migration Act 1958* (Cth), as particularised in the notice issued under section 107 of the Act. This involved determining whether the information provided about employment was incorrect and whether the skills assessment, based on that claimed employment, constituted a bogus document. The Tribunal was also required to consider whether the delegate had validly engaged the cancellation power under section 109 of the Act.

The Tribunal found that while the applicant's tax returns did not initially list the claimed employer, the applicant had provided a consistent account of their job tasks and had amended their tax returns. Crucially, the Tribunal was not satisfied that the applicant had provided incorrect information or a bogus document in the manner described in the section 107 notice. Consequently, the Tribunal concluded that the discretionary power to cancel the visa under section 109 of the Act did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 189 - Skilled - Independent visa.