He (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa. The applicant, who held a Subclass 500 visa granted in August 2017, received a notice of intention to consider cancellation from the Department under section 107 of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was the validity of the section 107 notice. Specifically, the Tribunal had to determine whether any defects in the notice were substantial enough to prevent the lawful exercise of the power to cancel the visa under section 109 of the Act. The Tribunal considered whether procedural requirements under section 107 were a mandatory precondition to cancellation and whether any such defects could be cured on review.

The Tribunal reasoned that section 109(1) requires a decision-maker to first determine, as per section 108(b), whether non-compliance occurred as described in the section 107 notice. While minor defects that do not affect the substance of the allegations or the visa holder's ability to respond may not invalidate a cancellation, substantial defects will. In this instance, the Tribunal found a defect in the section 107 notice because it identified incorrect information in the applicant's Subclass 417 Working Holiday (Extension) visa application, but failed to link this incorrect information to the applicant's Subclass 500 student visa application, which was the visa under consideration for cancellation. Although section 107A permits non-compliances in previous visas to be grounds for cancellation of a current visa, the notice itself must clearly specify the alleged non-compliance in relation to the visa being considered for cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 500 Student (Temporary) (Class TU) visa.