2106266 (Refugee)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 866 (Protection) visa. The applicant, an Iraqi national of Sunni faith and Bidoon ethnicity, had arrived in Australia as an unauthorised maritime arrival in 2010 and was subsequently granted a protection visa. The cancellation decision was based on alleged non-compliance with section 101 of the Migration Act 1958, which requires visa applications to be completed correctly with no incorrect answers. The Tribunal was required to determine whether there had been non-compliance as particularised in the notice issued under section 107 of the Act, 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. Section 101 mandates that visa applications must be answered completely and without incorrect information. Section 107 outlines the process for issuing a notice of possible non-compliance, requiring particulars of the alleged non-compliance and providing the visa holder an opportunity to respond. Section 109 permits the Minister to cancel a visa after deciding there was non-compliance and considering any response. The central issue was whether the applicant's conduct constituted non-compliance in the manner described in the section 107 notice.

The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 and the notice itself complied with statutory requirements, there was no non-compliance by the applicant in the way described in the notice. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.