Singh (Migration)

This matter concerned an appeal by Mr Singh against the cancellation of his Subclass 186 Employer Nomination Scheme visa. The cancellation was based on allegations of providing incorrect information and a bogus nomination document, contrary to sections 101 and 103 of the Migration Act 1958 (Cth). The dispute arose from claims of misrepresentation by a migration agent, financial probity issues within the employing association, and questions surrounding the applicant's intended permanent visa application, which had led to unfair dismissal claims.

The Tribunal was required to determine whether the applicant had failed to comply with the provisions of the Migration Act, specifically sections 101 (requiring correct information in visa applications) and 103 (prohibiting the provision of bogus documents). A key legal issue was whether the Minister had issued a valid notice under section 107 of the Act, which is a prerequisite for the exercise of the cancellation power under section 109. The validity of this notice depended on it providing sufficient particulars of the alleged non-compliance.

The Tribunal found that the decision to cancel the applicant's visa should be set aside. It reasoned that the exercise of the cancellation power under section 109 of the Act is conditional on the Minister issuing a valid notice under section 107, which must provide particulars of the alleged non-compliance. The Tribunal was not satisfied that the applicant had failed to comply with the relevant sections of the Act as described in the section 107 notice. 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 186 Employer Nomination Scheme visa.