Bai (Migration)

This matter concerned the cancellation of a Subclass 186 Employer Nomination Scheme visa held by the primary applicant, a citizen of the People's Republic of China, and the associated visas of his family members. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation alleging non-compliance with visa conditions, specifically failing to notify the Department of a change in sponsored occupation. Following the applicant's response, the Department decided there was non-compliance and cancelled the visa. The applicant sought review of this decision.

The primary legal issues before the Tribunal were whether the Department had validly exercised its power to cancel the visa under section 109 of the Migration Act 1958 (Cth), and whether the Notice of Intention to Consider Cancellation issued under section 107 of the Act was valid. The Tribunal also considered its jurisdiction concerning the family members' visas.

The Tribunal reasoned that the exercise of the cancellation power under section 109 is contingent upon the Minister issuing a valid notice under section 107, which must provide particulars of the alleged non-compliance. The Tribunal found that the notice issued in this case did not comply with the requirements of section 107, and therefore the power to cancel the visa did not arise. The Tribunal further noted that the applicant had continued to perform the nominated role of Finance Manager, despite being appointed as a Director of a related entity, and that the circumstances did not constitute a failure to notify of a change in sponsored occupation as contemplated by section 104. Consequently, the Tribunal determined it had no jurisdiction with respect to the family members' visas as no decision had been made in relation to them.

The Tribunal set aside the decision to cancel the primary applicant's visa and substituted a decision not to cancel it. The Tribunal also confirmed it had no jurisdiction concerning the other applicants.