Shijo (Migration)

The Administrative Appeals Tribunal (AAT) considered a dispute concerning the cancellation of a Subclass 489 – Skilled – Regional (Provisional) visa held by the applicant, Shijo. The Department of Home Affairs had issued a notice of intention to cancel the visa on the grounds that the applicant had provided incorrect information in their visa application, specifically in relation to their employment history, by submitting what was alleged to be a bogus document, a staff attendance log.

The primary legal issue before the Tribunal was whether the applicant had, in fact, failed to comply with a condition of their visa by providing incorrect information or bogus documents. This question was central to determining whether the Department had a lawful basis to exercise its discretionary power to cancel the visa under section 107 of the Migration Act 1958 (Cth).

The Tribunal found that it was not satisfied that the applicant had engaged in the non-compliance alleged by the Department. Consequently, the discretionary power to cancel the visa did not arise. The Tribunal therefore set aside the decision under review and substituted a decision not to cancel the applicant's visa. The Tribunal noted it had no jurisdiction concerning any other applicants.