Wu (Migration)

The Administrative Appeals Tribunal (AAT) considered the case of an applicant whose Subclass 189 – Skilled – Independent visa was subject to cancellation. The Department of Home Affairs had issued a notice of intention to cancel the visa on the grounds that the applicant had provided bogus documents, specifically bank statements and mobile phone bills, to support a claimed de facto relationship. The applicant contended that their migration agent had altered these documents.

The primary legal issue before the Tribunal was whether, in the exercise of its discretion, the visa should be cancelled, notwithstanding the non-compliance identified by the Department. The Tribunal was required to weigh the seriousness of the non-compliance against other relevant factors, including the applicant's long period of residence in Australia, their work and financial ties, and their personal connections. The Tribunal noted that it was not necessary to definitively determine whether the claimed de facto relationship had actually existed.

In reaching its decision, the Tribunal considered the applicant's submission that their agent had altered the documents, suggesting a degree of indifference or recklessness on the part of the applicant regarding the precise contents of their application. However, after a comprehensive review of all relevant circumstances, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the Department's decision to cancel the visa and substituted a decision not to cancel it.