1705072 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Immigration's decision to cancel the applicant's Subclass 866 (Protection) visa. The cancellation was based on the delegate's finding that the applicant had not complied with section 109(1) of the *Migration Act 1958* (Cth). The delegate did not accept the applicant's explanations regarding travel back to Iran and interactions with the Iranian Embassy in Canberra, finding that the applicant had not established an adverse profile. The core dispute was whether the grounds for cancellation were made out and, if so, whether the visa should be cancelled.

The legal issues before the Tribunal were whether the applicant had failed to comply with the relevant provisions of the *Migration Act 1958* (Cth), specifically sections 101, 102, 103, 104, 105, or 107(2), which relate to providing correct information in visa applications and passenger cards, not using bogus documents, and notifying the Department of any incorrect information or changes in circumstances. The Tribunal was also required to consider whether the Minister's power to cancel the visa under section 109(1) had arisen, which is contingent on the issuance of a valid notice under section 107 of the Act.

The Tribunal found that the decision to cancel the applicant's visa should be set aside. While section 109(1) of the *Migration Act 1958* (Cth) permits visa cancellation if a visa holder has failed to comply with certain provisions, the exercise of this power is conditional on the Minister issuing a valid notice under section 107. The Tribunal concluded that the delegate's decision to cancel the visa was not made out. Consequently, the Tribunal substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.