1708371 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 866 (Protection) visas of the applicants. The dispute arose from allegations that the applicants had provided incorrect information in their visa applications, which could lead to the cancellation of their visas under section 109 of the Migration Act 1958.

The primary legal issue before the Tribunal was whether the notices issued by the Minister, pursuant to section 107 of the Act, provided sufficient particulars of the alleged non-compliance to allow the applicants to adequately respond. The Tribunal was required to determine if the notices were sufficiently specific to inform the applicants of the basis upon which cancellation was being considered, thereby affording them procedural fairness.

The Tribunal reasoned that the exercise of the cancellation power under section 109 is contingent upon the Minister issuing a valid notice under section 107. Drawing on case law, including *Zhao v Minister for Immigration and Multicultural Affairs* and *Minister for Immigration and Citizenship v Brar*, the Tribunal held that a section 107 notice must provide particulars that fairly inform the visa holder of the grounds for cancellation, enabling them to respond effectively. The Tribunal found that the section 107 notices in this case did not meet this standard, concluding that there was no non-compliance by the applicants as described in the notices. Consequently, the discretionary power to cancel the visas did not arise.

The Tribunal set aside the decision under review and substituted it with a decision not to cancel the applicants' Subclass 866 (Protection) visas.