1720862 (Refugee)

This matter concerned an application to review the cancellation of a Subclass 866 (Protection) visa. The applicant, a citizen of Nigeria, had their visa cancelled by the Minister on the grounds of alleged non-compliance with section 101(b) of the *Migration Act 1958* (Cth). The alleged non-compliance related to the provision of incorrect information concerning the applicant's identity, including their name, nationality, date of birth, place of birth, and the authenticity of documents provided.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the Act, as particularised in the notice issued under section 107. Specifically, the Tribunal had to assess whether the information provided by the applicant in their visa application was incorrect, and if so, whether this constituted a failure to comply with the Act that warranted visa cancellation. A further issue was the validity of a certificate relied upon by the Department, which was found to be invalid as it did not properly particularise a public interest reason.

The Tribunal reasoned that the standard of proof in cases of visa cancellation must be high. While the delegate had formed the necessary state of mind to issue a notice under section 107, and the notice itself complied with statutory requirements, the Tribunal was not satisfied that the applicant had provided incorrect information in the manner described in the notice. The Tribunal noted that the assessment of a passport does not necessarily verify its legitimacy, and the evidence did not establish that the applicant had provided a false Nigerian passport or that the other information provided was incorrect. Consequently, the Tribunal concluded that 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.