Mohiuddin (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 500 (Student) visa. The cancellation was based on allegations that the applicant provided incorrect information and a bogus document in support of their visa application, specifically concerning a Diploma of Business purportedly completed at the Institute of Advancing Careers. The Department of Home Affairs had received advice from the Australian Skills Quality Authority (ASQA) indicating that the course provider's registration was suspended during the period the applicant claimed to have studied and that no certificates were issued by the provider during a relevant timeframe.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* by providing incorrect answers in their visa application, and whether they had contravened section 103 by providing a bogus document. These alleged failures were the basis for the potential cancellation of the visa under section 109 of the Act. The core of the dispute involved conflicting evidence from government authorities regarding the validity of the applicant's course completion and the issuance of their certificate.

The Tribunal reasoned that while the Department had issued a valid notice under section 107 of the Act, it was not satisfied that the applicant had actually failed to comply with the specified sections. The Tribunal noted that an updated authenticated transcript showed the course was completed and the certificate issued after the provider's registration was reinstated. Crucially, the Tribunal found that there was conflicting probative evidence from different government authorities and that it favoured the information supporting the applicant's claims. Consequently, the Tribunal was not satisfied that the information provided was incorrect or that the document was bogus.

As the Tribunal was not satisfied that there was non-compliance by the applicant as particularised in the notice given under section 107, the discretionary power to cancel the visa did not arise. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 500 (Student) visa.