Sojitra (Migration)

This matter concerned the review of a decision to cancel the applicant's Skilled Independent (Subclass 189) visa. The applicant had previously been granted a Subclass 457 visa sponsored by Zoom Auto Services Pty Ltd. Following a period of employment and a positive skills assessment as a Motor Mechanic, the applicant applied for the Subclass 189 visa, claiming points for Australian skilled employment. The Department subsequently issued a notice under section 107 of the Migration Act 1958, raising concerns about potential non-compliance with the Act, specifically in relation to information provided about his employment with Zoom Auto Services. The Tribunal was tasked with determining whether the cancellation decision was valid.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the provisions of the Migration Act 1958, specifically sections 101 and 103, which relate to providing correct information and not submitting bogus documents. The Tribunal was required to consider whether the notice issued under section 107 of the Act was valid and whether the applicant's actions constituted non-compliance that would engage the Minister's power to cancel the visa under section 109. This involved assessing the information provided by the applicant in his visa application and any subsequent responses to the Department's concerns.

The Tribunal reasoned that the power to cancel a visa 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. In this instance, the Tribunal found that it was not satisfied that the applicant had engaged in non-compliance as described in the section 107 notice. Consequently, the discretionary power to cancel the visa did not arise. The Tribunal applied the principles that the exercise of cancellation powers must be strictly in accordance with the statutory requirements, and where a notice fails to meet these requirements or the alleged non-compliance is not established, the cancellation cannot stand.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 189 - Skilled - Independent visa.