Shahi (Migration)

This matter concerned an appeal by Mr Shahi against the cancellation of his Skilled Independent (Permanent) visa (Subclass 189). The Department of Home Affairs had cancelled Mr Shahi's visa under section 109 of the *Migration Act 1958* (Cth) on the basis that he had provided incorrect information and failed to notify the Department of changes in his circumstances. The Tribunal was required to consider the validity of the notice of intention to cancel the visa, whether Mr Shahi had indeed failed to comply with relevant provisions of the Act, and whether the discretion to cancel the visa should have been exercised.

The primary legal issues before the Tribunal were whether the notice issued by the Department under section 107 of the Act was valid, and if so, whether Mr Shahi had contravened sections 101(b) (providing incorrect answers), 104 (failure to notify changes in circumstances), and 105 (failure to provide particulars of incorrect answers) of the *Migration Act*. The Tribunal also had to consider whether, in light of any proven non-compliance, the cancellation of the visa was an appropriate exercise of discretion, as cancellation was not mandatory.

The Tribunal found that the section 107 notice issued by the Department was valid and contained sufficient particulars for Mr Shahi to understand and address the issues raised. It was established that Mr Shahi had provided incorrect information in his visa application by failing to disclose pending criminal charges, and that this non-compliance was a basis for the visa being granted. The Tribunal also found that Mr Shahi's subsequent failure to notify the Department of this incorrect information constituted further non-compliance. While Mr Shahi asserted that the non-compliance was unintentional and due to an error by his migration agent, the Tribunal held that the responsibility for the accuracy of information rests with the visa holder, irrespective of any intermediary's actions.

Ultimately, the Tribunal set aside the decision to cancel Mr Shahi's visa. While acknowledging the non-compliance, the Tribunal considered Mr Shahi's contributions to the Australian community, including his investment in and operation of a business, and the financial hardship that cancellation would cause to him and his wife. The Tribunal concluded that, in these specific circumstances, the exercise of discretion to cancel the visa was not warranted.