1712581 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the allegation that the applicant had provided incorrect information in a previous protection visa application, specifically by claiming to be a stateless Faili Kurd from Iran when, it was alleged, they were an Iranian citizen possessing an Iranian passport. The dispute before the Tribunal was whether this ground for cancellation was established and, if so, whether the visa should be cancelled. The decision was made by Roslyn Smidt.

The legal issues before the Tribunal were whether the applicant had failed to comply with section 101 of the Migration Act 1958 by providing incorrect answers in their visa application, and if such non-compliance was found, whether the visa should be cancelled. The Tribunal was required to determine if the delegate had reached the necessary state of mind to engage section 107 of the Act and if the notice issued under that section complied with statutory requirements. Crucially, the Tribunal had to assess whether the evidence, including a Queensland Police report concerning the alleged loss of an Iranian passport, sufficiently established that the applicant was an Iranian citizen and therefore not stateless as claimed.

The Tribunal reasoned that the power to cancel a visa under section 109 of the Act is engaged only if the Minister first considers that the visa holder has failed to comply with certain provisions, such as section 101, and issues a valid notice under section 107 detailing the alleged non-compliance. In this instance, the Tribunal found that while the delegate had reached the necessary state of mind and the section 107 notice was valid, it was not satisfied that the applicant had actually failed to comply with section 101 as particularised in the notice. The Tribunal concluded that the evidence, particularly the Queensland Police report, did not provide a sufficient basis to be reasonably satisfied that the applicant was an Iranian citizen and therefore not stateless. Consequently, the discretionary power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.