1712356 (Refugee)

This matter concerned an appeal by a protection visa holder against the cancellation of their visa. The dispute arose from allegations that the applicant had provided incorrect information regarding their identity and nationality in their visa application, specifically claiming to be an Afghan citizen when evidence suggested they were a Pakistani citizen. The applicant had used a Pakistani passport and national identity card to travel to Australia and to sit English language tests.

The court was required to determine whether the applicant had failed to comply with the provisions of the *Migration Act 1958* (Cth) concerning the provision of correct information in visa applications. Specifically, the court considered whether the applicant had provided incorrect answers to questions about their name, date and place of birth, citizenship, country of protection sought, reasons for leaving Afghanistan, and fears upon return, as alleged in the notice issued under section 107 of the Act. The validity of the section 107 notice itself was not in dispute.

The court reasoned that the cancellation power under section 109 of the Act could only be engaged if there was a finding of non-compliance with the relevant sections of the Act, as detailed in a valid notice issued under section 107. In this instance, the Tribunal was not satisfied that the applicant had provided incorrect information in the manner described in the section 107 notice. Consequently, the discretionary power to cancel the visa did not arise.

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