2120251 (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on allegations of the applicant providing incorrect information in a previous visa application, specifically concerning his family composition and citizenship.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) in a manner that would engage the Minister's power to cancel his visa. This involved determining if the applicant had provided incorrect information or bogus documents, and if the notice issued under section 107 of the Act, detailing the alleged non-compliance, was valid and particularised the non-compliance sufficiently.

The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 and the notice issued complied with statutory requirements, the specific non-compliance alleged in the notice was not established. The notice particularised non-compliance with section 101(b) of the Act, relating to the applicant's place of birth, Afghan citizenship, travel on a false passport, and his family unit. However, the applicant had subsequently notified the Department of incorrect answers in his Protection visa application, clarifying his family composition by disclosing a half-brother who was a Pakistani citizen. The Tribunal concluded that the power to cancel the visa did not arise in these circumstances.

Consequently, the Tribunal set aside the decision under review.