Shaukat (Migration)

The Administrative Appeals Tribunal considered the decision to cancel the applicant's Subclass 489 visa. The dispute arose from the Department's belief that the applicant had provided bogus documents and incorrect information in support of her visa application, specifically concerning her employment history as a Dairy Technician and Senior Dairy Technician at Pure Dairies in Pakistan. The Department's findings were based on open-source intelligence checks, which suggested that the claimed business locations were not conducive to farming operations and that the applicant's claimed travel to a distant office was implausible.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with sections 101 and 103 of the *Migration Act 1958* (Cth), as particularised in the Notice of Intention to Consider Cancellation (NOICC) issued under section 107 of the Act. This involved determining if the documents provided by the applicant were "bogus" as defined by section 5 of the Act, or if the information provided in her application was incorrect, thereby constituting non-compliance with the statutory requirements for visa applications.

The Tribunal reasoned that while the Department had engaged section 107 and issued a compliant notice, the cumulative effect of the evidence did not establish non-compliance as described in the notice. The Tribunal found that the open-source intelligence, while raising questions, did not definitively prove that the documents were counterfeit or altered without authority, nor that the information provided was incorrect. Consequently, the Tribunal concluded that the discretionary power to cancel the applicant's visa under section 109 of the Act did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 489 - Skilled - Regional (Provisional) visa.