Sharma (Migration)

The Administrative Appeals Tribunal considered a case involving the cancellation of a Subclass 500 (Student) visa. The applicant, Sharma, had provided information regarding their employment history and a supporting reference letter in their visa application. The Department of Home Affairs subsequently conducted integrity checks which raised concerns about the veracity of this information, leading to the visa cancellation.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with sections 101(b) and 103 of the Migration Act 1958. Specifically, the Tribunal had to determine if the applicant provided incorrect answers in their visa application concerning their employment status and if they had submitted a bogus document, namely a reference letter from their purported employer. The Tribunal was also required to consider whether the notice issued under section 107 of the Act complied with statutory requirements and if the visa cancellation power under section 109 was validly engaged.

The Tribunal found that while the Department had issued a valid notice under section 107, the applicant had provided detailed and convincing evidence, including payslips and oral testimony from a director, to demonstrate their actual employment duties. This evidence, coupled with the fact that the hotel had retained minimum staff during its closure for renovations and the COVID-19 pandemic, supported the applicant's claim of continued employment. The Tribunal concluded that the applicant had not provided incorrect answers or a bogus document as alleged, and therefore, the grounds for visa cancellation under section 109 of the Act were not met.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 500 (Student) visa and substituted a decision not to cancel the visa.