1706817 (Refugee)

The Administrative Appeals Tribunal considered a dispute concerning the cancellation of a Subclass 866 (Protection) visa held by an applicant. The Minister had decided to cancel the visa, and the applicant sought review of this decision.

The primary legal issue before the Tribunal was whether the Minister's delegate had validly exercised the power to cancel the visa under section 109 of the *Migration Act 1958* (Cth). This required determining if the notice of intention to consider cancellation, issued under section 107 of the Act, complied with the statutory requirements, particularly concerning the date of the notice and the period allowed for a response.

The Tribunal reasoned that the exercise of the cancellation power under section 109 is contingent on the issuance of a valid notice under section 107. While the notice in this case contained an error in its date, the Tribunal applied a purposive approach, consistent with case law such as *MIAC v Brar* and *Salama v MIBP*, which holds that minor defects that do not affect the substance of the alleged non-compliance or the visa holder's capacity to respond do not necessarily invalidate the notice. However, the Tribunal found that the specific error in the date of the notice, when considered in conjunction with how the response period was calculated, meant that the notice did not comply with the requirements of section 107(1)(b) of the Act. Consequently, the discretionary power to cancel the visa did not arise.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 866 (Protection) visa.