Singh (Migration)

This matter concerned an appeal by Mr Singh against the cancellation of his Employer Nomination (Permanent) (Class EN) visa, Subclass 186 (Employer Nomination Scheme). The dispute arose because Mr Singh ceased employment with his sponsor before his visa was granted, without notifying the Department. He claimed this cessation was due to unpaid leave taken to support his pregnant wife. While his sponsor initially notified the Department of his cessation of work, they later supported his claim of unpaid leave. Mr Singh subsequently returned to work after his visa was cancelled. The Tribunal was required to determine whether the decision to cancel Mr Singh's visa should be affirmed.

The Tribunal considered whether the cancellation power under section 109 of the Migration Act 1958 (Cth) was validly engaged. This required an assessment of whether Mr Singh had failed to comply with relevant provisions of the Act, such as providing correct information in his application and notifying the Department of changes in circumstances. Crucially, the Tribunal had to determine if the notice issued under section 107 of the Act, which particulars the alleged non-compliance, was valid and complied with statutory requirements. Furthermore, the Tribunal addressed the implications of a section 375A certificate, which restricted the disclosure of certain information to the Tribunal, and considered whether the applicant was afforded procedural fairness in relation to the undisclosed material.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. The Tribunal also concluded that the section 375A certificate was valid, as a public interest reason for non-disclosure was clearly specified. Despite the non-disclosure of some material, the Tribunal satisfied procedural fairness by providing the applicant with the general gist of the undisclosed information, allowing him to respond. The Tribunal noted discrepancies between the applicant's claimed employment period and the earnings reported to the Australian Taxation Office, as well as information suggesting the applicant resided in different locations than stated while employed by his sponsor. The Tribunal affirmed the decision to cancel the applicant's visa.