1811497 (Refugee)

This matter concerned an application to review the cancellation of the applicant's Subclass 866 (Protection) visa. The dispute arose from allegations that the applicant had provided incorrect information in their visa application, specifically regarding their citizenship, and had travelled using fraudulently obtained identity documents. The decision under review was made by a delegate of the Minister for Immigration and Border Protection.

The primary legal issue before the Tribunal was whether the applicant's Subclass 866 (Protection) visa had been validly cancelled under section 109 of the *Migration Act 1958* (Cth). This required the Tribunal to determine if the applicant had failed to comply with the provisions of the Act concerning the provision of correct information and the use of genuine documents, and if the Minister had followed the correct procedural steps, including issuing a valid notice under section 107 of the Act. A key factual question was whether the applicant was a citizen of Pakistan, as alleged by the delegate, which would render their claim of being an Afghan citizen incorrect.

The Tribunal found that while there had been non-compliance by the applicant in a manner described in the notice issued under section 107, the decision to cancel the visa should be set aside. The Tribunal applied the principle that establishing grounds for visa cancellation cannot be done lightly or on the basis of inexact proofs, referencing *Sun v Minister for Immigration and Border Protection* and *Sullivan v Civil Aviation Safety Authority* regarding the caution required in administrative decision-making, particularly when significant consequences are involved. The Tribunal was not satisfied that it had been established that the applicant was a citizen of Pakistan, which was the most significant piece of incorrect information relied upon by the delegate.

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