McDaid (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 187 (Regional Sponsored Migration Scheme) visa of the applicant, McDaid. The dispute arose from allegations of non-compliance with section 104 of the Migration Act 1958, which requires visa holders to notify the Department of any changes in circumstances that render an answer in their visa application incorrect. The delegate had concluded that the applicant's employment with the nominating employer had ceased before the visa was granted, making an earlier declaration incorrect.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 104 of the Act, as particularised in the notice issued under section 107. Specifically, the Tribunal had to determine if the applicant's circumstances had changed such that an answer on his visa application became incorrect, and if so, whether he had failed to notify the Department of this change as required. The Tribunal also considered whether the notice issued under section 107 complied with statutory requirements and whether the delegate had reached the necessary state of mind to engage the cancellation power.

The Tribunal found that section 104(2) of the Act, which applies when an applicant is in Australia at the time of visa grant, limits the notification requirement to changes in circumstances that occurred *before* the visa was granted. The evidence indicated that the applicant's employment ceased in March 2016, while his visa was granted on 7 June 2016. Therefore, the cessation of employment occurred *after* the visa was granted, and section 104(2) did not impose a notification obligation in this instance. The Tribunal concluded that the delegate's reliance on the cessation of employment as a pre-grant change in circumstances was incorrect.

Consequently, the Tribunal was not satisfied that there was non-compliance by the applicant in the manner described in the section 107 notice. As a result, the discretionary power to cancel the visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 187 visa.