Harty (Migration)

The applicant, Mr. Harty, sought judicial review of the decision by the Minister for Immigration and Border Protection to cancel his Subclass 155 (Resident Return) visa. The visa had been granted based on his permanent residence status, which in turn was linked to a Subclass 856 (Employer Nomination Scheme) visa. The cancellation was predicated on allegations that incorrect information had been provided in relation to his nomination as a Project Coordinator, and that the nominating employer was subject to a sponsorship bar.

The central legal issue before the Federal Circuit Court was whether the Minister had lawfully exercised the power to cancel Mr. Harty's visa under section 109 of the *Migration Act 1958* (Cth). This required the court to determine if the applicant had, in fact, provided incorrect information, or if the circumstances of the case otherwise met the criteria for cancellation as outlined in the section 109 notice.

The court found that the information provided by the applicant in relation to his nomination was not incorrect. Furthermore, the court determined that the applicant had not failed to comply with a condition of his visa in the manner described in the section 109 notice. Consequently, the court concluded that the power to cancel the visa under section 109 did not arise. The cancellation decision was therefore set aside.