Gan (Migration)

This matter concerned an application by Gan (the applicant) for review of a decision to cancel his Subclass 186 - Employer Nomination Scheme visa. The applicant had resigned from his nominated employment position, and the Department of Home Affairs had subsequently issued a notice under section 107 of the Migration Act 1958 (Cth) regarding potential non-compliance with his visa conditions. The Tribunal was required to determine whether the applicant had complied with his obligations under the Act, specifically concerning notification of changes in circumstances.

The central legal issue before the Tribunal was whether the applicant's resignation from his nominated employment constituted a failure to notify the Department of a change in circumstances, thereby triggering the discretionary power to cancel his visa under section 109 of the Migration Act. The Tribunal had to consider the scope of section 104 of the Act, which mandates notification of changes that render an answer on a visa application incorrect, and how this interacted with the notice issued under section 107.

The Tribunal found that the applicant had not engaged in non-compliance as described in the section 107 notice. It reasoned that the applicant's resignation, while a material change in circumstances, did not render any previous answer on his application incorrect in a manner that would necessitate cancellation under section 109. The Tribunal concluded that the discretionary power to cancel the visa did not arise in these circumstances. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa. The Tribunal also noted it had no jurisdiction concerning other applicants.