1707132 (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 under section 109(1) of the *Migration Act 1958* (Cth). The applicant had arrived in Australia as an Irregular Maritime Arrival in December 2011 and subsequently provided a statement of claim in support of a protection visa application. The applicant's statement detailed his employment with a foreign company in Iraq, his assistance to his brother in a transport and goods sales business, and threats received by his father from suspected members of Jaish Al Mehdi, followed by the killing of his brother. The applicant expressed fear of returning to Iraq due to his Sunni Muslim faith, his employment with foreign entities, and his family's involvement in the transport business, believing the Iraqi authorities would not protect him.

The legal issues before the Tribunal were whether the applicant had failed to comply with section 101 of the *Migration Act 1958* (Cth) in the manner particularised in the notice issued under section 107 of the Act, and if so, whether the visa should be cancelled. The Tribunal was required to determine if the notice of non-compliance issued under section 107 complied with statutory requirements and sufficiently particularised the alleged non-compliance to allow the applicant to respond.

The Tribunal found that the notice issued under section 107 of the Act complied with the statutory requirements and sufficiently particularised the alleged non-compliance with section 101(b) of the Act. However, the Tribunal was not satisfied that there had been non-compliance by the applicant in the way described in the notice. Consequently, the discretionary power to cancel the applicant's visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.