1711341 (Refugee)

This matter concerned an application to review the cancellation of the applicant's Subclass 866 (Protection) visa. The dispute arose from allegations that the applicant had provided incorrect information in her protection visa application, which is a ground for visa cancellation under section 109 of the Migration Act 1958. The applicant contended that she did not receive the Notice of Intention to Cancel (NOIC) issued by the Minister's delegate, and that this failure to receive the notice rendered the cancellation decision invalid. The review was heard by Senior Member Josephine Kelly of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the Minister's delegate had validly exercised the power to cancel the applicant's visa under section 109 of the Act. This involved determining whether the NOIC was properly issued and served, specifically whether it was sent to the applicant's last known address for service as required by section 494B(4)(c)(i) of the Act. A secondary issue, though not determinative of the outcome, was whether the applicant's failure to receive the NOIC constituted a denial of procedural fairness.

The Tribunal considered the evidence regarding the addresses to which the NOICs were sent and the fact that both were returned to sender. It noted that the Department had made inquiries to locate the applicant after the notices were returned. However, the Tribunal was not persuaded that the applicant had notified the Department of her change of address to either of the residences to which the NOICs were sent, or to the address where the final cancellation notice was successfully served. Therefore, the Tribunal found that the NOICs were sent to the applicant's last known address for service, and the failure to receive them did not invalidate the notices or constitute a denial of procedural fairness, as the applicant had the opportunity to present her case during the review.

Despite finding that the NOICs were validly issued, the Tribunal ultimately set aside the decision to cancel the applicant's visa. The Tribunal substituted a decision not to cancel the visa, acknowledging the difficult and lengthy process the applicant had endured, including significant delays due to jurisdictional issues.