1933869 (Migration)

This matter concerned the review of a decision by a delegate of the Minister to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, who claimed to be an Afghan citizen, had arrived in Australia in 2011 and was initially granted a permanent Protection (Subclass 866) visa. His Resident Return visa, granted in 2018, was subsequently cancelled on the basis that he had provided incorrect information in his earlier Protection visa application, in breach of section 101 of the Migration Act 1958 (Cth). The delegate's decision was made following the issuance of a Notice of Intention to Consider Cancellation (NOICC) which detailed alleged non-compliance with section 101(b) of the Act, relating to the accuracy of information provided in visa applications.

The primary legal issues before the Tribunal were whether the applicant had indeed failed to comply with section 101 of the Act as particularised in the NOICC, and if so, whether the applicant's visa should be cancelled. The NOICC specified that the alleged non-compliance stemmed from incorrect answers provided in the applicant's 2011 Protection visa application, with further information from other visa applications lodged by family members being used to indicate this non-compliance. The Tribunal was required to determine if the delegate had properly engaged the cancellation power under section 109 of the Act and if the notice issued complied with the statutory requirements.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 109 and that the NOICC complied with the statutory requirements. Crucially, the applicant's representative acknowledged in written submissions that the applicant had provided incorrect information in his Protection visa application, and the applicant himself confirmed this in a statutory declaration, admitting non-compliance with section 101 of the Act. Based on this acknowledged non-compliance, the Tribunal found that the grounds for cancellation were made out. However, the decision to cancel a visa under section 109 is discretionary, and the Tribunal was required to consider whether cancellation was warranted in this specific case. The Tribunal ultimately set aside the delegate's decision to cancel the visa.