Ni (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, Ni, had obtained this visa based on an offer of employment as a Corporate General Manager with Cawarra Cosmetics Pty Ltd. The Department of Home Affairs had cancelled the visa on the grounds that the applicant had provided incorrect answers and a bogus document in support of her visa application, specifically relating to the employment offer.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with sections 101(b) and 103 of the Migration Act 1958 (Cth) by providing incorrect information and a bogus document, and if so, whether the applicant's visa should be cancelled under section 109 of the Act. The Tribunal was required to consider the applicant's response to the notice of intention to cancel and any prescribed circumstances relevant to the exercise of discretion under section 109.

The Tribunal found that the Delegate had concluded the employment offer was bogus because investigations revealed that no such person as Kristy Basanwicz, who purportedly provided the offer, worked for Cawarra Cosmetics Pty Ltd, and the business owner had no intention of sponsoring an overseas worker for that position. However, the applicant contended that her employment and nomination were genuine, explaining that she was introduced to the opportunity through a reputable, state-owned recruitment agency, Shanghai Overseas Chinese Exit Entry Services Co Ltd (SOCEES), which acted for many international companies. She detailed her extensive experience in the cosmetics industry and the interview process conducted by an individual who identified himself as the HR manager of Cawarra Cosmetics, with interpretation provided by SOCEES. The Tribunal noted that the cancellation under section 109 was discretionary, requiring consideration of the applicant's explanations and prescribed circumstances.

The Tribunal ultimately set aside the decision to cancel the applicant's visa. It found that the applicant had not provided incorrect answers or a bogus document, and therefore, the grounds for cancellation under section 109 were not established. The Tribunal considered the applicant's detailed explanation of the recruitment process and her genuine belief in the legitimacy of the employment offer, which was facilitated by a professional agency.