Wu (Migration)

The Administrative Appeals Tribunal reviewed the decision to cancel Ms Wu's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the delegate's finding that Ms Wu had failed to comply with section 101(b) of the *Migration Act 1958* (Cth) when she answered "yes" to a declaration that she agreed to take up her approved nominated position for at least two years following the grant of her Subclass 186 visa. This finding was predicated on the delegate's belief that Ms Wu had not actually performed the nominated position after her visa was granted.

The primary legal issue before the Tribunal was whether Ms Wu had indeed failed to comply with section 101(b) of the Act, as particularised in the Notice of Intention to Consider Cancellation (NOICC) issued under section 107. This section requires non-citizens to provide correct information in their visa applications and to answer all questions accurately. The Tribunal was required to determine if Ms Wu's answer to the declaration constituted non-compliance, and if so, whether the visa should be cancelled.

The Tribunal reasoned that the requirement under section 101(b) related to the applicant's agreement to take up the nominated position at the time of the visa application, not the actual performance of the role after the visa was granted. The Tribunal accepted Ms Wu's submissions that she had agreed to take up the position for at least two years at the time of her application, and therefore, there was no non-compliance in the manner particularised in the NOICC. Consequently, the discretionary power to cancel the visa under section 109 of the Act did not arise.

The Tribunal set aside the delegate's decision to cancel Ms Wu's Subclass 155 visa and substituted a decision not to cancel the visa.