1732190 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Immigration's decision to cancel the applicant's Subclass 866 (Protection) visa under s.109(1) of the *Migration Act 1958* (Cth). The applicant, a national of Libya, had been granted a protection visa in 2014. The cancellation decision was based on allegations of non-compliance with visa application requirements, specifically the provision of incorrect information.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the provisions of the Act requiring the provision of correct information in his protection visa application, as contemplated by s.109(1) and the preceding notice provisions under s.107. This involved determining whether any information provided by the applicant was incorrect, and if so, whether this constituted a failure to comply with the relevant sections of the Act, thereby giving rise to the Minister's power to cancel the visa. The Tribunal also considered the validity and relevance of two non-disclosure certificates issued by the Department.

The Tribunal reasoned that the cancellation power under s.109(1) was contingent on a valid notice under s.107 and a subsequent decision of non-compliance. It found that the information contained within the two non-disclosure certificates, one relating to internal processing documents and the other to an anonymous allegation of false information, did not establish non-compliance by the applicant. Specifically, the Tribunal considered the anonymous allegation to be of no weight, and it did not accept that the applicant had provided incorrect answers in his protection visa application. Consequently, the Tribunal concluded that there was no non-compliance by the applicant as described in the s.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.