Gashi (Migration)

This matter concerned an appeal by Mr Gashi against the cancellation of his Subclass 186 Employer Nomination Scheme visa. The cancellation was based on the grounds that Mr Gashi had provided incorrect information in his visa application, specifically regarding his place of birth and original citizenship. The delegate who made the cancellation decision relied on official verification from Kosovar authorities indicating no record of civil registration for Mr Gashi in Kosovo and confirmation that he was not born there and had never been registered as a citizen of Yugoslavia or the Republic of Kosovo. The Tribunal was required to determine whether Mr Gashi had indeed failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing incorrect information, and if so, whether the visa should be cancelled.

The Tribunal considered the provisions of the *Migration Act 1958* (Cth), particularly sections 101 and 109, which deal with the requirement for visa applicants to provide correct information and the Minister's power to cancel a visa based on non-compliance. Section 101 mandates that visa applications must be completed without incorrect answers, and section 109 allows for visa cancellation if the Minister decides there has been non-compliance under section 101, after considering any response from the visa holder. The Tribunal's task was to assess whether the notice issued under section 107, which particularised the alleged non-compliance with section 101(b), was valid and whether the factual basis for the alleged non-compliance was established to the Tribunal's satisfaction.

Ultimately, the Tribunal found that it was not satisfied that Mr Gashi had engaged in non-compliance in the manner described in the notice issued under section 107 of the Act. Consequently, the discretionary power to cancel his visa did not arise. The Tribunal set aside the decision to cancel Mr Gashi's visa and substituted a decision not to cancel it. The Tribunal also noted that it had no jurisdiction with respect to any other applicants.