NGO (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 457 (Temporary Work (Skilled)) visa held by the applicant, NGO. The dispute arose from the delegate's decision to cancel the visa based on alleged non-compliance with sections 101 and 103 of the *Migration Act 1958* (Cth), specifically the provision of incorrect information and bogus documents pertaining to the applicant's qualifications as a Massage Therapist.

The Tribunal was required to determine whether the applicant had failed to comply with the *Migration Act* as particularised in the Notice of Intention to Consider Cancellation (NOICC). This involved assessing whether the applicant provided incorrect information in their visa application and whether the documents submitted in support of their qualifications as a Massage Therapist were considered "bogus" under the Act. The Tribunal also had to consider whether the delegate had validly exercised the power to cancel the visa, which is contingent on the issuance of a compliant notice under section 107 of the Act.

The Tribunal reasoned that while the delegate had issued a valid notice under section 107, the core issue was whether the applicant had actually engaged in non-compliance. The delegate's concerns stemmed from departmental checks that allegedly contradicted the applicant's provided employment history and qualifications. However, the Tribunal found that the applicant had provided evidence of having obtained a Diploma of Remedial Massage and a Certificate IV in Massage Therapy Practice, and that the information provided in the visa application, including the statement from the sponsoring business, was not demonstrably incorrect or based on bogus documents. Consequently, the Tribunal concluded that there was no non-compliance as described in the section 107 notice, and therefore the discretionary power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 457 visa. The Tribunal also noted that it had no jurisdiction with respect to another applicant.