1621155 (Refugee)

This matter concerned an application by a protection visa holder, who had entered Australia as an irregular maritime arrival from southern Iraq and was granted a protection visa in June 2011. The applicant had subsequently changed his name twice and travelled to Iraq on three occasions, stating Iraq as his destination on his passenger cards. The Minister's delegate issued a notice under section 107 of the Migration Act 1958, alleging non-compliance with section 101(b) of the Act due to incorrect answers provided in the protection visa application concerning his reasons for seeking protection and fears upon return to Iraq. The delegate subsequently cancelled the applicant's visa under section 109 of the Act. The Administrative Appeals Tribunal was required to determine whether the section 107 notice issued by the delegate was valid.

The primary legal issue before the Tribunal was whether the notice issued by the Minister's delegate under section 107 of the Migration Act 1958 was valid. The validity of this notice was a precondition to the exercise of the power to cancel the visa under section 109 of the Act. The Tribunal considered whether the particulars of the alleged non-compliance provided in the notice sufficiently complied with the requirements of section 107.

The Tribunal reasoned that the exercise of the cancellation power under section 109 is contingent upon the Minister issuing a valid notice under section 107, which must provide particulars of the alleged non-compliance. In this case, the notice identified the applicant's travel to Iraq and the passenger card information as evidence of potential non-compliance with section 101(b) of the Act. However, the notice did not adequately set out the particulars of the alleged incorrect answers in the protection visa application, instead referring the applicant to his original Refugee Status Application. The Tribunal concluded that this failure to provide specific particulars of the alleged incorrect answers rendered the section 107 notice invalid. Consequently, as a valid section 107 notice was a prerequisite for the exercise of the section 109 power, the delegate had no power to cancel the visa.

The Tribunal set aside the delegate's decision to cancel the applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel the visa.