Ren (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Subclass 155 (Five Year Resident Return) visa held by the applicant, Ren. The dispute arose from allegations that the applicant had provided incorrect information in a previous visa application, specifically concerning the location of their employment, which was nominated by a Regional Skilled Migration Scheme (RSMS) nominator.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing incorrect information in their visa application, thereby providing grounds for cancellation of their visa. This involved determining if the information provided was indeed incorrect and, if so, whether the applicant had been afforded due process under section 107 of the Act.

Senior Member Michael Cooke reasoned that the power to cancel a visa under section 109 of the Act arises only after a decision has been made under section 108 that there was non-compliance by the visa holder, and after consideration of any response provided. In this instance, the Tribunal was not satisfied that the applicant had engaged in non-compliance as described in the notice issued under section 107. Consequently, 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 155 visa.