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File number: 1607221

Tribunal: Deputy President Jan Redfern

The applicant’s visa was cancelled by a delegate of the Minister for Immigration and Border Protection. On 5 January 2018 the Administrative Appeals Tribunal substituted the decision under review with one not to cancel the visa.

Section 109(1) of the Migration Act allows the Minister to cancel a visa if the holder has failed to comply with ss.101102103104105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents or incorrect information.

The applicant is a citizen of Ireland and first entered Australia in 2010. He was granted a subclass 186 Employer Nomination Scheme visa sponsored by Murphy Pipe and Civil in the position of a Program or Project Administrator. The sponsor was subsequently audited by the Department of Immigration and Border Protection (as it was then called) which ultimately led to a consideration of the documents provided by the applicant in support of his visa application. After reviewing various documents that raised doubts about the accuracy of the visa application, the delegate found that the applicant had provided false information and a bogus document in support of his application. The false information and bogus documents concerned the description of the applicant’s role and duties as set out in a letter from Murphy Pipe and Civil that was attached to his application.

The delegate took into account a range of matters in coming to the decision. One of the matters considered was the definition of a Program or Project Administrator used by VETASSES (a vocational education and training assessment provider used by the Department). VETASSES described a Program or Project Administrator as an ‘administrative role’, a definition that did not match the description of the applicant’s work as provided in his documents.

The Tribunal found that the applicant’s duties were consistent with the description of the duties set out in his application and rejected the delegate’s reliance on the VETASSESS skills assessment formula as relevant to the question of whether the applicant had provided incorrect information or a bogus document. The applicant had not been required to undertake this skills assessment nor had it been represented that the applicant met the assessment. The applicant relied on his work experience as described in the letter attached to his application and to meet the relevant criteria and the fact the applicant did not meet the VETASSESS criteria cited was found not to be relevant in this case.

The Tribunal stated that the question of whether the applicant in fact undertook the tasks described in his application and in the letter from Murphy Pipe and Civil was the critical question in determining whether there had been non-compliance by the applicant.

After considering all the information provided, the Tribunal found that the information provided accurately set out the work of the applicant over the relevant period and therefore no incorrect information or bogus documents were provided.