1617889 (Refugee)

This matter concerned an application to review the cancellation of a Subclass 866 (Protection) visa. The applicant, who had been granted a protection visa in March 2013 based on claims of fearing abduction, torture, and death if returned to Iraq due to his employment with the government and perceived political views, had subsequently travelled to Iraq. The Minister's delegate issued a notice under s.107 of the Migration Act 1958, alleging non-compliance with s.101(b) of the Act due to providing incorrect answers in his visa application, specifically regarding his fear of returning to Iraq.

The primary legal issue before the Tribunal was whether the notice issued under s.107 of the Migration Act 1958 was valid, and consequently, whether the power to cancel the applicant's visa under s.109 of the Act had arisen. The Tribunal was required to determine if the information provided in the s.107 notice sufficiently particularised the alleged non-compliance with s.101(b) to satisfy the requirements of s.107.

The Tribunal reasoned that the exercise of the cancellation power under s.109 is contingent upon the Minister issuing a valid notice under s.107 that provides particulars of the alleged non-compliance. In this instance, the Tribunal found that the s.107 notice did not adequately particularise the alleged non-compliance. Therefore, the discretionary power to cancel the visa did not arise. The Tribunal set aside the decision under review.