1901948 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on alleged non-compliance with sections 101 and 107A of the Migration Act 1958 (Cth), specifically that the applicant had provided incorrect information in a previous protection visa application. The applicant had arrived in Australia in March 2009 and subsequently applied for a protection visa in February 2010, completing a Form 866C.

The legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of section 101 of the Act by providing incorrect answers in his protection visa application, and if so, whether this non-compliance constituted a ground for cancellation under section 109 of the Act. The Tribunal was required to determine if the notice issued under section 107 of the Act complied with statutory requirements and if the delegate had reached the necessary state of mind to engage the cancellation power.

The Tribunal considered the applicant's previous protection visa application, where he stated his intention to seek protection due to fear of returning to Lebanon. The cancellation notice particularised non-compliance with section 101 and 107A, alleging incorrect information was provided. However, the Tribunal found that the applicant's previous claims of seeking protection, which formed the basis of his protection visa application, were not demonstrably incorrect in the context of the cancellation proceedings. The Tribunal noted that the applicant had since returned to Lebanon voluntarily and fathered four children, but these subsequent events did not retroactively render his earlier statements false. The Tribunal concluded that the requisite level of satisfaction for cancellation had not been attained.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 (Five Year Resident Return) visa.