Yu (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 482 – Temporary Skill Shortage visa held by the first applicant, Yu. The cancellation was based on allegations that Yu had provided incorrect answers and a bogus employment reference. The Tribunal also considered other applicants, but ultimately found it had no jurisdiction concerning them.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing a bogus document or incorrect information regarding his employment history. This question was central to determining whether the discretionary power to cancel his visa arose.

The Tribunal found in favour of the applicant, placing significant weight on several factors. It noted that the applicant's former employer had gone bankrupt by the time of the Department's enquiries, and the officer contacted was retired and lacked immediate access to employment records. The Tribunal accepted that the applicant's employment was under a contractual arrangement with a contractor, and that difficulties in obtaining precise details were due to the administrative systems in China and privacy concerns. Crucially, the Tribunal accepted that the applicant was a truthful witness, that his skills had been positively assessed by MINTRAC, and that he had a genuine motivation to work in Australia due to better conditions. The Tribunal concluded it was not satisfied that there had been non-compliance by the applicant as described in the notice.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the first applicant's visa.