1706997 (Refugee)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under section 109(1) of the *Migration Act 1958* (Cth). The applicant, an Arab of Sunni Muslim faith from Iraq, had arrived in Australia as an irregular maritime arrival and subsequently sought protection. The cancellation of his visa was based on alleged non-compliance with section 101(b) of the Act, as particularised in a notice issued under section 107.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Act, which requires that no incorrect answers be given in a visa application form. This question arose in the context of a section 107 notice that particularised the alleged non-compliance. The Tribunal was required to determine if the delegate had reached the necessary state of mind to engage section 107, if the notice issued complied with statutory requirements, and if the nature of the non-compliance was sufficiently particularised for the applicant to respond.

The Tribunal found that the section 107 notice issued to the applicant complied with the statutory requirements and that the non-compliance was sufficiently particularised. However, the Tribunal was not satisfied that there had been non-compliance by the applicant in the manner described in the section 107 notice. Consequently, the discretionary power to cancel the applicant's visa under section 109 of the Act did not arise.

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