Oad (Migration)

The Administrative Appeals Tribunal reviewed a decision by the Minister to cancel the visa of the applicant, Oad. The dispute concerned allegations that the applicant had provided incorrect information and a bogus document in her Subclass 186 (Employer Nomination Scheme) visa application, and that the nominating business, NDOT Technologies Pty Ltd, was not lawfully and actively operating, thus rendering the applicant incapable of taking up the nominated position for the required two years.

The Tribunal was required to determine whether the applicant had failed to comply with sections 101 (providing correct information) and 103 (not providing bogus documents) of the *Migration Act 1958* (Cth), as particularised in the notice issued under section 107 of the Act. If non-compliance was found, the Tribunal then had to consider whether the visa should be cancelled.

The Tribunal found that the applicant was a credible and honest witness, possessing significant qualifications and experience. It noted that the responsibility for providing the documentary evidence to satisfy the nomination requirements, including proof of the business's active operation and genuine need for the position, lay with the nominating business, not the applicant. While the Department's integrity checks raised concerns about the existence and operation of NDOT Technologies Pty Ltd, and the authenticity of supporting documents such as lease agreements and training receipts, the Tribunal concluded that the applicant herself had not provided incorrect information or bogus documents. The Tribunal reasoned that the applicant's role was to provide information about herself, and the information pertaining to the business's operational status and the validity of its supporting documents was within the purview of the business. Therefore, the Tribunal found no non-compliance by the applicant in the manner described in the section 107 notice, and consequently, the power to cancel the visa did not arise.

The Tribunal set aside the decision to cancel the applicant's visa.