1729043 (Refugee)

The Tribunal reviewed a decision to cancel a protection visa granted to an applicant from Afghanistan. The cancellation was based on allegations of non-compliance with section 101(b) of the Migration Act 1958, which requires visa applications to be correct, and section 103, which prohibits the provision of bogus documents. The applicant had been granted the visa in 2011 based on claims of being a Pakistani national fearing persecution in Pakistan. A Notice of Intention to Consider Cancellation (NOICC) was issued in 2017, alleging incorrect information was provided in the original application regarding his nationality and reasons for leaving Afghanistan.

The primary legal issue before the Tribunal was whether the applicant had indeed failed to comply with the specified sections of the Act, as particularised in the NOICC. This required the Tribunal to determine if the information provided in the applicant's 2011 Protection visa application and supporting statements was incorrect, and if so, whether this constituted a failure to comply with the statutory requirements for visa applications. The Tribunal also considered whether the delegate had properly engaged the cancellation power under section 107 of the Act.

The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 and the notice itself complied with statutory requirements, it was not satisfied that the applicant had failed to comply with the Act in the manner described in the notice. The applicant's original visa was granted on the basis that he was a Pakistani national with a well-founded fear of persecution in Pakistan. The Tribunal concluded that the non-compliance alleged in the NOICC was not established, and therefore, the discretionary power to cancel the visa did not arise.

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