Zhu (Migration)

This matter concerned the review of a decision to cancel the applicant's Temporary Skill Shortage (Class GK) visa (Subclass 482). The applicant had applied for the visa, declaring employment as a skilled meat worker with Fujian Rohesen Foods Group Co Ltd (FRFG) in China since 2016, supported by a reference from the company's Factory Director. Following the visa grant, departmental officers in China contacted FRFG, where HR advised that the applicant was not recorded as an employee and the signatory of the reference lacked authority. Consequently, the Department issued a Notice of Intention to Consider Cancellation, alleging non-compliance with sections 101(b) and 103 of the Migration Act 1958 due to providing incorrect information and a bogus document.

The Tribunal was required to determine whether the applicant had failed to comply with sections 101(b) and 103 of the Act, as particularised in the Notice of Intention to Consider Cancellation, and if so, whether the visa should be cancelled. Section 101(b) requires that no incorrect answers be given in a visa application, while section 103 prohibits the provision of bogus documents. The exercise of the cancellation power under section 109 of the Act is contingent on a valid notice being issued under section 107, which requires particulars of the alleged non-compliance.

The Tribunal found that while the delegate had formed the necessary state of mind to issue a section 107 notice and the notice itself complied with statutory requirements, the power to cancel the visa did not arise because the Tribunal was not satisfied that the applicant had engaged in non-compliance as described in the notice. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.