Zhu (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 187 (Regional Sponsored Migration Scheme) visa. The applicant had provided an employment contract and a letter confirming an employment offer, which were genuine at the time of their creation. However, the offer was subsequently withdrawn due to a business downturn, and the sponsoring company later went into liquidation. The Department of Home Affairs had also received incorrect information during an unannounced phone call, which the applicant believed to be a scam attempt. The review was heard by Member Andrew McLean Williams.

The primary legal issue before the Tribunal was whether the applicant had engaged in conduct that warranted the cancellation of their visa, specifically concerning the provision of potentially incorrect information or documents. This involved an interpretation of the *Migration Act 1958* (Cth), particularly sections relating to the definition of a "bogus document," the requirement for visa applications to be correct, and the process for notifying visa holders of potential non-compliance and the subsequent cancellation of their visa. The Tribunal had to determine if the circumstances surrounding the withdrawn employment offer and the unannounced phone call constituted non-compliance under the Act.

The Tribunal found that it was not satisfied that the applicant had engaged in non-compliance as described in the notice issued under section 107 of the *Migration Act 1958*. The Tribunal reasoned that while the employment offer was withdrawn and the company was in liquidation, the initial documents provided were genuine when submitted. Furthermore, the incorrect information provided during the phone call was not considered a deliberate act of non-compliance by the applicant, who reasonably believed it to be a scam. Consequently, the discretionary power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 187 visa.