1801591 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Subclass 186 Employer Nomination Scheme visa. The dispute arose from allegations that the applicant had provided incorrect information in their visa application, specifically regarding the genuineness of the nominated position and their intention to take up that position. The case was heard by the Tribunal.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101 of the Migration Act 1958, which requires visa applicants to provide correct information. This question was framed by the particulars of non-compliance set out in a notice issued under section 107 of the Act, which alleged that the nominated position did not genuinely exist and that the applicant's agreement to take up the position for at least two years was therefore incorrect. The Tribunal was required to determine if the evidence supported this alleged non-compliance and, if so, whether the visa should be cancelled.

The Tribunal reasoned that while the Department had conducted a site visit and gathered information suggesting the nominated position may not have genuinely existed as described, it was not satisfied that the applicant had provided an incorrect answer in the manner particularised in the section 107 notice. However, the Tribunal noted that the evidence indicated the applicant had not commenced employment in the nominated position within six months of the visa grant. While this might constitute grounds for cancellation under section 137Q of the Act, the Tribunal stated that any further cancellation process would be at the discretion of the Department.

Consequently, the Tribunal set aside the decision to cancel the first named applicant's visa and substituted a decision not to cancel it. The Tribunal also determined that it had no jurisdiction concerning the other named applicants.