Gu (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 186 - Employer Nomination Scheme visa. The applicant had previously departed Australia due to family illness, compounded by the impact of the COVID-19 pandemic, communication difficulties, and the death of their migration agent. The core of the dispute revolved around whether the applicant had provided incorrect information in their visa application, specifically concerning the occupation of a welder (First Class) and their genuine intention to work for the sponsoring employer.

The Tribunal was required to determine whether there had been non-compliance with section 101(b) of the *Migration Act 1958*, which mandates that a non-citizen must complete their visa application form without providing incorrect answers. This determination was to be made in light of the notice issued under section 107 of the Act, which particularised the alleged non-compliance. The Tribunal also considered the provisions of sections 98, 99, 100, and 111 of the Act, which define completion of applications, information as answers, incorrect answers, and the application of cancellation provisions regardless of intent.

The Tribunal found that the notice issued under section 107 complied with statutory requirements and that the delegate had reached the necessary state of mind to engage section 107. However, upon considering the evidence, the Tribunal concluded that there was no non-compliance by the applicant in the manner described in the section 107 notice. 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 Subclass 186 visa. The Tribunal noted it had no jurisdiction with respect to other applicants.