1609228 (Migration)

The Administrative Appeals Tribunal considered a dispute concerning the cancellation of the applicant's Subclass 187 - Regional Sponsored Migration Scheme visa. The core of the matter involved allegations of non-compliance with the applicant's visa application obligations.

The Tribunal was required to determine whether the applicant had provided incorrect information in their visa application, specifically regarding their relationship status at the time of application, and consequently, whether this constituted a failure to comply with section 101(b) of the Migration Act 1958. A further issue was whether the notice issued under section 107 of the Act, which particularised the alleged non-compliance, was valid and whether the discretionary power to cancel the visa arose from any identified non-compliance.

The Tribunal reasoned that the power to cancel a visa under section 109 of the Act is contingent upon the Minister issuing a valid notice under section 107, which must provide particulars of the alleged non-compliance. In this instance, the Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 and the notice itself complied with statutory requirements, it was not satisfied that the applicant had actually engaged in non-compliance as particularised in the notice. The Tribunal concluded that because it was not satisfied that the applicant had failed to comply with section 101(b) in the manner described in the section 107 notice, the discretionary power to cancel the visa did not arise.

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