THANDI (Migration)

This matter concerned an appeal by the applicant against the cancellation of his Skilled-Regional (Provisional) visa (subclass 489). The applicant had stated in his visa application that he possessed competent English, relying on a TOEFL iBT test taken on 18 October 2014. Subsequently, the applicant was notified that his test results had been cancelled by the test administrators due to concerns about the test's administration. The Department of Immigration subsequently issued a Notice of Intention to Consider Cancellation, alleging the applicant had provided an incorrect answer in his visa application, thereby contravening section 101(b) of the Migration Act 1958 and making his visa liable for cancellation under section 109.

The primary legal issue before the Tribunal was whether the applicant had provided an incorrect answer in his visa application, thereby triggering the grounds for cancellation under section 109 of the Migration Act 1958. This required the Tribunal to consider the applicant's knowledge and the validity of his English competency claim at the time of the visa application, as well as the effect of the subsequent cancellation of his TOEFL results. The Tribunal also had to determine if the applicant had been afforded natural justice by the TOEFL administrators.

The Tribunal found that the applicant's statement regarding his English competency was not incorrect at the time he made his visa application on 13 December 2014, as he was unaware of the cancellation of his TOEFL results, which only occurred on 4 March 2015, after his visa had been granted. The Tribunal noted that section 100 of the Act states an answer is incorrect even if the person did not know it was incorrect, but crucially, the applicant was not aware of the invalidity of his test results when he made the statement. Furthermore, the Tribunal considered that the TOEFL administrators had failed to provide the applicant with natural justice by not raising concerns with him before cancelling his results. Consequently, the Tribunal concluded that there was no non-compliance by the applicant as described in the Notice of Intention to Consider Cancellation, and therefore the discretionary power to cancel his visa did not arise.

The Tribunal set aside the decision to cancel the applicant's subclass 489 visa and substituted a decision not to cancel it. The Tribunal noted that it had no jurisdiction with respect to other applicants.