Federal Court. Does s 108 authorise the Minister to "decide that there has been non-compliance with s 101 of the Act in a manner that has not been particularised in a notice lawfully given under s 107"? Can it be said that "whilst the particulars of the alleged non-compliance are to be described in the [NOICC], the range of materials available to the decision-maker is not restricted to the responses" of the non-citizen? Was it "impermissible for the Tribunal to have regard to events occurring after the grant of the visa in determining whether the answers given by the appellant were incorrect at an earlier time"? We summarise the answers to the above and many other questions.
The questions to the Federal Court (FCA) were as follows:
Question 1: Does a decision under s 108 of the Migration Act 1958 (Cth) involve the exercise of a discretion?
Question 2: Does s 108 authorise the Minister to "decide that there has been non-compliance with s 101 of the Act in a manner that has not been particularised in a notice lawfully given under s 107"?
Question 3: Can it be said that "whilst the particulars of the alleged non-compliance are to be described in the [NOICC], the range of materials available to the decision-maker is not restricted to the responses" of the non-citizen?
Question 4: Is the purpose of s 100 "to make it clear that a person may provide an incorrect answer and so fail to comply with s 101 of the Act without having any subjective intention to be incorrect or untruthful"?
Question 5: Can it be said that the "circumstance that the person did not intended to give incorrect information would of course be relevant (and in some cases definitive) on the exercise of the discretion as to whether the visa should be cancelled under s 109"?
Question 6: Was it "impermissible for the Tribunal to have regard to events occurring after the grant of the visa in determining whether the answers given by the appellant were incorrect at an earlier time"?
Question 7: Can it be said that the veracity of the answers given by a visa applicant in a visa application fall to be considered against all of the relevant circumstances?
Question 8: Can it be said that "a person who claims to be unwilling to return to his or her own country because of a fear of being persecuted will not be proven incorrect merely because the security situation for that person in their home country changes at some point in time after a visa is granted"?
The FCA answered those questions as follows: