Wu (Migration)

This matter concerned the cancellation of a Subclass 408 (Temporary Activity) visa. The applicant had provided incorrect information in a previous visa application, relating to work experience, which was discovered through departmental checks revealing no employment records. The employer was subsequently found to be in liquidation. The applicant provided forthright and honest evidence and further documentation in response to the cancellation notice. The Tribunal was asked to review the decision to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) in relation to the information provided in their visa application, thereby giving the Minister grounds to cancel the visa. Specifically, the Tribunal had to determine if the applicant had provided incorrect answers, as defined by section 100 of the Act, and if the Minister had correctly exercised the discretion to cancel the visa under section 109. A secondary issue arose regarding the Tribunal's jurisdiction over a second applicant.

The Tribunal found that it was not satisfied that there had been non-compliance by the applicant in the manner described in the notice issued under section 107 of the Act. Consequently, the discretionary power to cancel the applicant's visa did not arise. The Tribunal also noted that it had no jurisdiction with respect to the other applicant. The decision under review was set aside, and a substituted decision was made not to cancel the first applicant's visa.