Rodrigues (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Skilled Independent (Permanent) (Class SI) visa, Subclass 189. The cancellation was based on allegations that the applicant had provided incorrect information in their visa application and had submitted a bogus document, specifically a skills assessment obtained through false pretences regarding their previous work experience as a software developer. The Tribunal was required to determine whether the applicant had indeed failed to comply with the relevant provisions of the Migration Act 1958, and if so, whether the visa cancellation was warranted.

The Tribunal considered whether the applicant had provided incorrect information regarding their skills assessment, contrary to section 101(b) of the Act, and whether the skills assessment itself constituted a bogus document under section 5(1)(c) of the Act, in contravention of section 103. The delegate's view was that the applicant was employed as a Software Developer Trainee, not a Software Developer as claimed, and that the skills assessment was consequently based on false information. The Tribunal also had to be satisfied that the notice issued under section 107 of the Act, detailing the alleged non-compliance, was valid and that the delegate had reached the necessary state of mind to engage the cancellation power.

Ultimately, the Tribunal found that it was not satisfied that the applicant had engaged in non-compliance as particularised in the section 107 notice. While the applicant's designation had changed from trainee to Software Developer, and they had provided documentation to this effect, the Tribunal concluded that the evidence did not establish the necessary grounds for cancellation under sections 101 or 103. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the visa.