1810655 (Refugee)

This matter concerned an application by a protection visa holder to set aside a decision to cancel their Subclass 866 visa. The applicant, an employee of a non-governmental organisation in Pakistan, had previously been granted a protection visa due to fears of harm from the Taliban. The cancellation decision was based on alleged non-compliance with obligations under the Migration Act 1958, specifically concerning information provided to the Minister. The Tribunal was required to determine whether the applicant had failed to comply with the relevant provisions of the Act, thereby giving rise to the Minister's discretionary power to cancel the visa.

The central legal issue was whether the applicant had provided incorrect information or otherwise failed to comply with their obligations under the Migration Act, as contemplated by section 107 of the Act. This involved assessing whether the applicant's actions, including voluntarily returning to Pakistan to visit family and taking measures to mitigate safety risks during that period, constituted non-compliance. The Tribunal considered the applicant's conduct in light of the provisions defining "incorrect answers" and the requirements for visa applications and responses to notices issued under section 107.

The Tribunal found that the applicant had not provided incorrect information and had not otherwise failed to comply with their obligations under section 107 of the Migration Act. The applicant had voluntarily returned to Pakistan to visit an ill child and elderly parents, and had taken steps to reduce their safety risks while there. Crucially, there was no evidence that the applicant had returned to Pakistan in 2013, which appeared to be a basis for the cancellation decision. Consequently, the Tribunal concluded that the discretionary power to cancel the applicant's 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.