Awais (Migration)

This matter concerned an appeal by Mr. Muhammad Awais against the Minister's decision to cancel his Skilled Regional Sponsored (Provisional) (Class SP) visa, Subclass 489. The dispute centred on whether the grounds for cancellation, as stipulated under section 116 of the Migration Act 1958 (Cth), were established. The decision was made by Senior Member Kate Millar of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Minister was satisfied that a fact or circumstance upon which Mr. Awais' visa was granted did not exist, specifically concerning the withdrawal of his nomination by the Northern Territory government. The Tribunal was required to determine if the nomination had been withdrawn prior to the visa grant on 26 October 2018, as required by clause 489.225(2) of the Migration Regulations 1994.

The Tribunal reasoned that for the ground of cancellation under s 116(1)(aa) to exist, the fact or circumstance relied upon must not have existed at the time of the visa grant. While the Northern Territory government had communicated its intention to withdraw Mr. Awais' nomination on 25 October 2018, due to concerns about falsified work experience, this communication was an email sent at 5:04 pm on that day. The notification of Mr. Awais' visa grant was sent at 10:21 am on 26 October 2018. Therefore, the Tribunal concluded that the nomination had not been formally withdrawn before the visa was granted. As the ground for cancellation under s 116(1)(aa) was not established, the Tribunal set aside the decision to cancel Mr. Awais' visa and substituted it with a decision not to cancel the visa.