1713364 (Refugee)

The applicant, a citizen of Iraq, sought judicial review of a decision to cancel his Subclass 866 Protection (Class XA) visa. The Minister's delegate had issued a Notice of Intention to Consider Cancellation (NOICC) on the grounds that the applicant had provided incorrect information in his visa application, specifically that his claimed fear of persecution in Iraq was unsupported, evidenced by his voluntary return to Iraq on multiple occasions. The applicant had been granted the protection visa in 2011 and subsequently travelled to Iraq for two periods totalling approximately 11 months between 2012 and 2014.

The primary legal issue before the court was whether the NOICC issued to the applicant was a valid notice under section 107 of the *Migration Act 1958* (Cth). Section 107(1)(a) requires that a notice given by the Minister must provide "particulars of the possible non-compliance." The applicant contended that the NOICC failed to particularise the alleged incorrect information sufficiently, rendering it invalid.

The court found that the NOICC did not adequately particularise the alleged non-compliance. While it stated that the applicant's voluntary returns to Iraq suggested he did not hold a claimed adverse profile and was not a person of adverse interest to the Iraqi state, it did not explain *why* these returns were considered to render his original claims of persecution unsupported. The court reasoned that a valid section 107 notice is a statutory precondition for the exercise of the power to cancel a visa under section 109. As the NOICC was found to be invalid, the power to cancel the visa did not arise.

Consequently, the court set aside the delegate's decision to cancel the applicant's Subclass 866 Protection visa. The Tribunal substituted a decision not to cancel the visa. The court also noted that it had no jurisdiction with respect to other applicants mentioned in the case.