Bian (Migration)

This matter concerned an appeal by the applicant, Bian, against the cancellation of her Subclass 186 Employer Nomination Scheme visa. The dispute arose from allegations that the applicant had provided incorrect information in her visa application regarding her residential address and employment details. The Administrative Appeals Tribunal (Cth) was required to determine whether a valid notice of non-compliance had been issued, whether the applicant had indeed failed to comply with the requirements of the Act, and if so, whether the visa should be cancelled.

The Tribunal was tasked with assessing the evidence presented concerning the applicant's stated residential address in South Australia and her employment with The Big Fortune Pty Ltd. The Department's information suggested that the applicant's financial records indicated a Queensland-based presence during the period of her alleged employment in South Australia, with bank statements showing transactions in Queensland suburbs and an address in Runcorn, Queensland. Furthermore, departmental records indicated that all of the applicant's international arrivals into Australia since 2008 had been at Brisbane International Airport, with incoming passenger cards declaring an intention to reside in Queensland.

Ultimately, the Tribunal found that it was not satisfied that the applicant had engaged in non-compliance as described in the notice issued under section 107 of the Migration Act 1958. Consequently, the discretionary power to cancel the applicant's visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.