1923821 (Refugee)

This matter concerned the cancellation of a protection visa held by the applicant and her three children. The applicants claimed to be stateless Rohingya Muslims from Myanmar, fearing persecution due to their ethnicity and religion. They had travelled to Australia using fraudulently obtained Pakistani passports after fleeing riots in Myanmar. The delegate had refused to grant the visas, and the applicant sought review by the Tribunal. A preliminary issue arose regarding a non-disclosure certificate issued by the Department, which the Tribunal found to be invalid as it was issued under the incorrect legislative provision.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in her visa application, thereby constituting non-compliance with the requirements of the *Migration Act 1958* (Cth) and justifying the cancellation of her visa. Specifically, the Tribunal had to determine if the applicant's statements, made in the context of her protection visa application and subsequent review, were considered "incorrect answers" under the Act, even if she was unaware of their inaccuracy. The Tribunal also considered the validity of the notice of non-compliance issued to the applicant under section 107 of the Act.

The Tribunal reasoned that for the discretionary power to cancel a visa to arise under section 109 of the Act, there must first be a finding of non-compliance under section 108. This requires the Minister to have issued a valid notice under section 107 detailing the particulars of the alleged non-compliance. In this case, the Tribunal was not satisfied that the applicant had engaged in non-compliance in the manner described in the notice. Consequently, the discretionary power to cancel the applicant's visa did not arise.

The Tribunal set aside the decision to cancel the first applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel it. The Tribunal noted that it had no jurisdiction with respect to the other applicants.