1929707 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the Safe Haven Enterprise visa granted to the applicant, a man who arrived in Australia as an irregular maritime minor and claimed to be a citizen of Pakistan. The dispute arose from allegations that the applicant provided incorrect information during his visa application process, specifically concerning his name, date of birth, citizenship, and family members, and failed to update this information.

The Tribunal was required to determine whether the applicant had failed to comply with section 101 of the Migration Act 1958 (Cth), which mandates the provision of correct information in visa applications and the notification of any inaccuracies. A key legal issue was whether the Notice of Intention to Consider Cancellation (NOICC) issued by the delegate complied with the requirements of section 107 of the Act, which necessitates providing particulars of the alleged non-compliance. The Tribunal also considered the discretionary power to cancel the visa under section 109 of the Act.

The Tribunal reasoned that the exercise of the cancellation power under section 109 is contingent upon the issuance of a valid notice under section 107. It found that section 107 is only engaged if the delegate has formed a genuine belief that the visa holder has not complied with relevant provisions, and that a failure to provide sufficient particulars in the notice could lead to jurisdictional error. The Tribunal concluded that the delegate must have reached a state of satisfaction that non-compliance had occurred before issuing the notice, and that it was not sufficient for the delegate to merely consider that the applicant "may have" provided incorrect information.

Ultimately, the Tribunal set aside the decision to cancel the applicant's visa.