SUN (Migration)

This matter concerned the review of a decision by the Department to cancel the first applicant's Subclass 186 Employer Nomination Scheme visa. The applicants, citizens of China, had previously applied for and been granted an Australian visa. Following an integrity check triggered by an application for Australian citizenship, the Department issued a notice of intention to cancel the visa under section 107 of the *Migration Act 1958* (Cth). The first applicant responded to this notice, but the Department proceeded to cancel the visa under section 109 of the Act. The first applicant sought review of this decision before the Tribunal.

The primary legal issues before the Tribunal were whether the notice of intention to cancel the visa complied with the requirements of section 107 of the Act, and if so, whether the first applicant had indeed failed to comply with the provisions of the Act as particularised in the notice, specifically sections 101 and 103. The Tribunal was required to determine if the notice provided sufficient particulars of the alleged non-compliance and if the delegate issuing the notice had formed the necessary state of mind to engage section 107. Furthermore, the Tribunal had to assess whether the applicant had provided incorrect information in previous visa applications and submitted bogus documents, as alleged.

The Tribunal found that the notice issued under section 107 was valid, containing sufficient particulars to allow the applicant to understand and address the issues raised, and that the delegate had reached the requisite state of mind. The Tribunal was satisfied that the first applicant had failed to comply with sections 101 and 103 of the Act by providing incorrect information in multiple visa applications and by submitting bogus academic documents. The Tribunal applied the principles that an incorrect answer is still incorrect even if the applicant was unaware of its inaccuracy, and that a "bogus document" includes one obtained due to a false or misleading statement.

Ultimately, the Tribunal affirmed the Department's decision to cancel the first applicant's Subclass 186 visa. The Tribunal also determined that it lacked jurisdiction with respect to the second applicant.