LA (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Skilled Nominated (Permanent) (Class SN) visa, subclass 190. The applicant had been notified by the Minister's delegate of a potential failure to comply with the *Migration Act 1958* (Cth) and the subsequent decision to cancel the visa. The appeal was heard by Catherine Carney-Orsborn.

The primary legal issues before the Tribunal were whether the notice issued by the Minister's delegate complied with the requirements of section 107 of the Act, and consequently, whether the power to cancel the visa under section 109 was validly enlivened. Specifically, the Tribunal had to determine if the notice correctly identified the alleged non-compliance and if it specified the appropriate statutory period for the visa holder to respond.

The Tribunal found that while the applicant's representative argued the notice was misleading by directing the applicant to respond to section 101(b) (incorrect answers) rather than section 103 (bogus documents), and that the response period of 5 working days was incorrect for a permanent visa, the Tribunal was satisfied that the notice did include particulars of the possible non-compliance. However, the Tribunal determined that the notice was flawed because it specified a response period of 5 working days, whereas section 107(1A)(b) mandates a period of 14 days for permanent visas. As a valid notice under section 107 is a prerequisite for the exercise of the cancellation power under section 109, the Tribunal concluded that the power to cancel the visa had not been enlivened.

Consequently, the Tribunal set aside the decision under review and substituted a decision that the power to cancel the visa under section 109 was not enlivened.