SINGH (Migration)

This matter concerned the review of a decision to cancel the Subclass 186 Employer Nomination Scheme visa granted to the applicant. The applicant had applied for and been granted the visa in November 2015, nominating the occupation of Mechanical Engineering Technician. The delegate considered that the applicant had breached section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect information regarding his English language ability, and had also provided bogus documents in support of his qualifications, thereby breaching section 103 of the Act. A notice of intention to cancel the visa was issued, and the applicant’s representative sought access to documents under freedom of information provisions and requested further time to respond, citing personal circumstances.

The legal issues before the Tribunal were whether the applicant had failed to comply with sections 101(b) and 103 of the *Migration Act 1958* (Cth) as particularised in the notice of intention to cancel, and if so, whether the visa should be cancelled. The Tribunal was required to consider the validity of the delegation instrument and the compliance of the notice issued under section 107 with statutory requirements. It also had to determine whether the applicant had provided incorrect answers in his application form concerning his English language test results and whether the educational documents submitted for his Mechanical Engineering Diploma were bogus.

The Tribunal reasoned that the instrument of delegation was valid, having been signed by the Minister at the relevant time. It found that the notice issued under section 107 complied with the statutory requirements and that the applicant had indeed failed to comply with sections 101(b) and 103. This non-compliance stemmed from the applicant responding positively to questions about undertaking an English language test and achieving the required level, and by providing educational documents for a Diploma in Mechanical Engineering that were considered bogus. The Tribunal noted that section 100 of the Act provides that an incorrect answer is still incorrect even if the applicant was unaware of the inaccuracy.

The Tribunal affirmed the decision to cancel the applicant's visa. It concluded that the visa was granted on the basis of incorrect information and, having regard to the limited information before it regarding the applicant's present circumstances and the absence of any information supporting a finding that the visa should not be cancelled, determined that the cancellation should stand. The Tribunal also noted that it had no jurisdiction with respect to other applicants.