1707874 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa held by the applicant, a male from Iraq. The applicant had initially arrived in Australia in 2009 and was granted a protection visa based on claims of fearing harm from the Mahdi Army in Iraq, detailing a history of threats, violence against his brother, and personal injury. The Department of Home Affairs subsequently issued a notice under section 107 of the Migration Act 1958, proposing cancellation of the applicant's visa on the grounds that he had provided incorrect information in his protection visa application. This was based on evidence suggesting multiple extensive visits to Iraq since the grant of his protection visa, including the birth of a child there, which appeared inconsistent with his stated fear of harm.

The primary legal issue before the Tribunal was whether the section 107 notice provided sufficient particulars to fairly inform the applicant of the basis upon which his visa cancellation was being considered, thereby enabling him to adequately respond. The Tribunal considered the principles established in *Zhao v Minister for Immigration and Multicultural Affairs* and *Minister for Immigration and Citizenship v Brar*, which require that a notice must be sufficiently particularised to allow the visa holder to understand and respond to the allegations of non-compliance. The Tribunal also had regard to the Federal Magistrates Court's decision in *SZEEM v Minister for Immigration*, which emphasised the need for particulars of the alleged falsity to be detailed enough to afford a real opportunity to answer the allegation.

The Tribunal found that the section 107 notice adequately particularised the grounds for cancellation. It detailed the specific information provided by the applicant in his protection visa application that was now considered incorrect, and it outlined the basis upon which this information was alleged to be false, including evidence of travel to Iraq, passenger card information, and the birth of a child there. The Tribunal was satisfied that this level of detail allowed the applicant to understand and respond to the non-compliance allegation. However, despite the adequacy of the notice, the Tribunal ultimately concluded that there was no non-compliance by the applicant as described in the section 107 notice.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa and substituted a decision not to cancel the visa.