Hashan (Migration)

This matter concerned an appeal by Mr Hashan against the cancellation of his Subclass 489 Skilled Regional (Provisional) visa. The Department had cancelled the visa on the grounds that Mr Hashan had provided incorrect answers in his visa application and had provided bogus documents, contrary to sections 101 and 103 of the *Migration Act 1958* (Cth). The Tribunal was required to determine whether the notice issued under section 107 of the Act, which particularised the alleged non-compliance, was valid and whether Mr Hashan had indeed failed to comply with the relevant provisions of the Act.

The Tribunal considered the provisions of sections 101 and 103 of the Act, which require non-citizens to provide correct information in their visa applications and to refrain from providing bogus documents. It also examined section 107, which mandates that a notice of non-compliance must provide particulars of the alleged contravention. The Department's decision to cancel the visa was based on a site visit to Mr Hashan's purported employer, Crystal Company, where conflicting information was reportedly obtained regarding his employment, and on Mr Hashan's own interview, where he allegedly provided inconsistent details about his work hours and attendance. The notice also alleged that Mr Hashan had provided a bogus employment contract and work references from Crystal Company.

The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with the statutory requirements, it was not satisfied that Mr Hashan had engaged in non-compliance as described in the notice. The Tribunal concluded that the discretionary power to cancel the visa did not arise because the grounds for cancellation were not sufficiently established. Consequently, the Tribunal set aside the decision to cancel Mr Hashan's visa and substituted a decision not to cancel it. The Tribunal noted it had no jurisdiction with respect to any other applicants.