Kaur (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 187 Regional Sponsored Migration Scheme visa held by the applicant, Ms. Kaur. The dispute arose from alleged incorrect information provided in the visa and nomination applications, specifically concerning the sponsor's trading name, business registration, and work location. The sponsor, Foodshala Pty Ltd, trading as Anika Sweets and Restaurant, had reportedly ceased trading at the nominated address and moved premises, although the applicant continued employment with the sponsor.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* (Cth), which requires a non-citizen to complete their visa application form without giving incorrect answers. This was the specific non-compliance particularised in the notice issued under section 107 of the Act. The Tribunal was required to determine if the information provided in the nomination application, which was linked to the applicant's visa application, constituted an incorrect answer for the purposes of section 101(b), and if so, whether the visa should be cancelled.

The Tribunal reasoned that while section 109 of the Act permits the Minister to cancel a visa if a visa holder fails to comply with certain provisions, including section 101, the exercise of this power is conditional on the Minister issuing a valid notice under section 107. The notice must provide particulars of the alleged non-compliance. In this case, the notice identified non-compliance with section 101(b) due to incorrect information in the nomination application. However, the Tribunal found that the incorrect address provided in the nomination application was not the applicant's visa application, and the notice did not sufficiently particularise how the applicant themselves had failed to comply with section 101(b) in relation to their own visa application. Consequently, the Tribunal concluded that the discretionary power to cancel the visa under section 109 did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 187 visa. The Tribunal noted it had no jurisdiction with respect to other applicants.