1730514 (Refugee)

This matter concerned an application to review the cancellation of a protection visa. The applicant, who identified as Faili Kurd and stateless, had previously reported his passport lost and had been a victim of physical attack and extortion, leading to an attempt to obtain a false passport. The Minister's delegate had formed the view that the applicant had provided incorrect information in his visa application and entry interview, specifically regarding his citizenship and ethnic group, thereby failing to comply with section 101(b) of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Act by providing incorrect answers in his visa application and entry interview, and if so, whether the Minister's power to cancel his visa under section 109 of the Act had been validly exercised. This required the Tribunal to consider the adequacy of the Notice of Intention to Consider Cancellation (NOICC) and whether it sufficiently informed the applicant of the alleged non-compliance and provided an opportunity to respond.

The Tribunal found that the NOICC sufficiently informed the applicant of the basis for the proposed cancellation and that the delegate had reached the necessary state of mind to issue the notice under section 107 of the Act. However, the Tribunal was not satisfied that the grounds identified by the delegate had been established to the required standard of satisfaction that incorrect information had been provided. Consequently, the Tribunal concluded that there was no non-compliance by the applicant as described in the section 107 notice, and therefore 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.