SHARMA (Migration)

This matter concerned the applicant, who held a Subclass 189 Skilled Independent visa. The Minister had decided to cancel this visa, and the applicant sought review of that decision before the Tribunal. The cancellation was based on allegations that the applicant had provided incorrect information and a bogus document in support of his visa application, specifically relating to a skills assessment from Engineers Australia.

The Tribunal was required to determine whether the notice issued by the Minister under section 107 of the Migration Act 1958 complied with the statutory requirements and, if so, whether the applicant had indeed failed to comply with sections 101 and 103 of the Act as particularised in that notice. The core legal issue was whether the applicant had provided a valid skills assessment or, conversely, had provided incorrect information and a bogus document, thereby engaging the Minister's power to cancel the visa.

The Tribunal reasoned that the exercise of the cancellation power under section 109 of the Act is contingent upon the Minister issuing a valid notice under section 107, which must provide particulars of the alleged non-compliance. The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 and the notice itself complied with the statutory requirements, it was ultimately not satisfied that the applicant had engaged in non-compliance in the manner described in the notice. Therefore, the discretionary power to cancel the visa did not arise.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal also noted it had no jurisdiction with respect to other applicants.