Protection visa cancellation on the ground of incorrect information

In the last few years many recognised refugees have seen their Permanent Protection Visa’s (Subclass 866) cancelled on the basis of incorrect information provided at the time of initial asylum claim when they arrived Australia, in most cases illegally by boat.

The Minister has powers under Section 109 of the Migration Act 2001 (the Act) to cancel a visa if he or she finds that the person holding the visa had provided incorrect information in relation to his asylum claim.

Visa cancellation cannot be decided without first going through a natural justice process in which the visa holder is given an opportunity to respond to the allegation of incorrect information. The process initiates from Section 101 of the Act which provides that a non-citizen must complete a visa application in such a way that no incorrect answers are given or provided. If it comes to the Department of Home Affairs (DHA) attention that section 101 has not been complied with, section 107 prescribes certain steps to be taken by the Minister before cancelling the visa. This include a notice of incorrect application sent to the visa holder with particulars of the possible non-compliance and inviting the visa holder to show to the Minister that there was compliance or give reason for the non-compliance.

The via holder usually has to respond with specific time limits. it is important for the visa holder to seek legal advice as soon as possible when the notice is received.

After receipt of response from the visa holder, the Minister has powers under section 108 to decide whether there was a non-compliance by the visa holder and if so the Minister may cancel the visa under section 109 of the Act.

If you have received any such notice from the DHA or know someone who has received such a notice, you may contact us for an obligation free consultation about the notice and the response to be provided to the DHA.