Quinn (Migration)

The applicant, a citizen of Ireland, sought judicial review of a decision to cancel his subclass 856 Employer Nomination Scheme visa. The visa had been granted on the basis that his occupation was Program or Project Administrator, sponsored by Murphy Pipe and Civil Constructions Pty Ltd. Following an audit of the sponsoring employer, which resulted in a sponsorship bar being imposed on Murphy Pipe and Civil, the Department of Immigration and Border Protection issued a Notice of Intention to Consider Cancellation to the applicant under section 109 of the Migration Act 1958 (Cth). The applicant contended that he had not provided incorrect information or bogus documents and that the grounds for cancellation had not been established. The matter came before the Federal Court of Australia.

The court was required to determine whether the delegate was entitled to issue the notice under section 107 of the Act, meaning whether the delegate had reached the necessary state of mind to engage that section. If so, the court had to consider whether the notice itself was valid. Further, if the notice was valid, the court needed to ascertain whether, having regard to the applicant's response, there had been non-compliance by the visa holder as described in the notice. Finally, if non-compliance was established, the court would consider how the discretion to cancel the visa should be exercised.

The court reasoned that the obligation to be satisfied about the existence of facts grounding the exercise of a statutory power rests with the decision-maker, not the visa holder. The cancellation of a permanent visa, particularly after a significant period of residence in Australia, carries serious consequences, and any factual findings must be based on logical and probative material, not speculative information. The applicant argued that documents relied upon by the delegate, such as a "Training Matrix" listing his position as "welding/TA" and Enterprise Bargaining Agreement classifications, did not accurately reflect his actual duties as a Project Administrator. He asserted that his primary role was administrative and supervisory, consistent with the nominated occupation. The court found that the evidence did not support the conclusion that the applicant had provided incorrect information or bogus documents, and therefore the ground for cancellation under section 109 had not been made out.

Consequently, the court concluded that the power to cancel the visa did not arise. The decision to cancel the applicant's visa was set aside.