2009010 (Migration)

This matter concerned an appeal by an applicant against the Tribunal's affirmation of the Minister's decision to cancel his Return (Residence) (Class BB) visa, specifically a Subclass 155 (Five Year Resident Return) visa. The dispute arose from allegations that the applicant had provided incorrect information and potentially a bogus passport in relation to a previous visa application, leading to the cancellation of his current visa. The case was heard by the Tribunal.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) as particularised in the notice issued under section 107, and if so, whether the cancellation of his visa was warranted. Specifically, the Tribunal had to determine if the delegate had reached the necessary state of mind to issue the section 107 notice and if the notice itself complied with statutory requirements. The Tribunal also considered whether the applicant's visa had been granted based wholly or partly on incorrect information or a bogus document.

The Tribunal reasoned that the delegate had properly formed the requisite state of mind and issued a compliant notice under section 107, alleging non-compliance with section 101(b) of the Act. The Tribunal found that the applicant's visa would not have been granted had the correct information been known at the time of application. While acknowledging the applicant's representative's submissions regarding the circumstances of the non-compliance, including illiteracy and the influence of people smugglers, the Tribunal was satisfied that the applicant acted of his own free will, believing that providing false information would enhance his chances of obtaining a protection visa. The Tribunal also noted that new claims for protection, not considered by the delegate, were presented but were not relevant to the cancellation decision itself. The Tribunal applied the principle that a decision-maker must be satisfied of the grounds for cancellation based on available material, and that a visa cannot be cancelled simply because the visa holder has failed to show cause why it should not be.

The Tribunal concluded that there was non-compliance as described in the section 107 notice and affirmed the decision to cancel the applicant's visa.