Zhang (Migration)

This matter concerned an appeal by Ms Zhang against the cancellation of her Subclass 186 Employer Nomination (Permanent) (Class EN) visa. The delegate of the Minister had cancelled the visa on the grounds that Ms Zhang had provided incorrect information and a bogus document in support of her visa application, contrary to sections 101(b) and 103 of the *Migration Act 1958* (Cth). The Tribunal was required to determine whether Ms Zhang had indeed failed to comply with these provisions and, if so, whether the cancellation of her visa should be affirmed.

The central legal issues before the Tribunal were whether Ms Zhang had provided incorrect information and a bogus document in her visa application, and whether these actions constituted non-compliance with the relevant sections of the Act. Specifically, the Tribunal considered whether a TOEFL iBT Test Report Form, which Ms Zhang relied upon for her English language proficiency, was a bogus document and whether the information provided about it was incorrect. The Tribunal also had to assess whether the notice issued under section 107 of the Act complied with statutory requirements and whether the delegate had reached the necessary state of mind to engage the cancellation power.

The Tribunal found that Ms Zhang had provided incorrect information and a bogus document. Ms Zhang conceded that the photograph on the TOEFL report was not her own and that a third party had sat the test on her behalf, despite the report bearing her name. This concession established non-compliance with section 101(b) of the Act. Furthermore, the Tribunal considered the TOEFL report to be a bogus document as defined by section 5(1) of the Act, as it purported to have been issued in respect of Ms Zhang but was not, thus constituting non-compliance with section 103. The Tribunal rejected Ms Zhang's submission that her ignorance of Australian laws excused her conduct, noting the clear warnings on the visa application form regarding the seriousness of providing false or misleading information or bogus documents. The Tribunal gave significant weight to the fact that the incorrect information and bogus document were relied upon, in part, in the decision to grant the visa.

Ultimately, the Tribunal affirmed the decision to cancel Ms Zhang's Subclass 186 visa. The Tribunal concluded that there had been non-compliance by Ms Zhang in the manner described in the notice issued under section 107 of the Act. Having regard to all relevant circumstances, the Tribunal exercised its discretion to cancel the visa. The Tribunal noted that it had no jurisdiction with respect to any other applicants.