1930334 (Refugee)

The applicant, who arrived in Australia as an illegal maritime arrival in November 2009 and subsequently applied for a protection visa, sought review of a decision to cancel that visa. The dispute centred on whether the applicant had provided incorrect information in their visa application, thereby breaching section 101 of the Migration Act 1958 (Cth). The Tribunal was tasked with determining if the delegate had issued a valid notice under section 107 of the Act, if the applicant had indeed failed to comply with section 101 as particularised in that notice, and if so, whether the visa should be cancelled.

The Tribunal considered the provisions of sections 101, 107, and 109 of the Migration Act 1958 (Cth). Section 101 requires a non-citizen to complete their visa application form such that all questions are answered and no incorrect answers are given. Section 107 outlines the process for the Minister to issue a notice to a visa holder alleging non-compliance, requiring particulars of the alleged non-compliance and informing the holder of their rights to respond. Section 109 permits the Minister to cancel a visa if, after deciding there was non-compliance and considering any response, they have regard to prescribed circumstances. The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with the statutory requirements.

Despite finding that there was non-compliance by the applicant in the manner described in the section 107 notice, the Tribunal concluded that, having regard to all relevant circumstances, the visa should not be cancelled. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 866 (Protection) visa.