1810335 (Refugee)

This matter concerned the review of a decision to cancel the applicant's Subclass 866 (Protection) visa. The applicant had been granted the visa on 30 March 2010, based on claims made in his visa application, a statutory declaration, and an interview. The Department of Home Affairs subsequently issued a Notice of Intention to Consider Cancellation (NOICC) on 16 November 2017, alleging non-compliance with section 101(b) of the Migration Act 1958 (the Act) due to the provision of incorrect information in his visa application. The applicant claimed he never received the NOICC.

The legal issues before the Tribunal were whether the delegate had formed the necessary state of mind to engage section 107 of the Act, whether the notice issued under section 107 complied with statutory requirements, and if so, whether there had been non-compliance as particularised in the notice, and if that non-compliance warranted visa cancellation. The specific non-compliance alleged was that the applicant provided incorrect information in his Protection visa application, including claims of being a stateless Faili Kurd, participating in demonstrations post-2009 elections, being sought by the Basij, and leaving Iran on a false passport with smuggler assistance.

The Tribunal considered the provisions of sections 101 and 109 of the Act, which relate to the requirement for visa applications to be correct and the Minister's power to cancel a visa if non-compliance is found. The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. Despite the applicant's assertion of not receiving the NOICC, the Tribunal found that the notice was validly issued. The Tribunal concluded that there was non-compliance by the applicant in the manner described in the notice.

The Tribunal affirmed the decision to cancel the applicant's Subclass 866 (Protection) visa.