1715285 (Refugee)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under section 109(1) of the *Migration Act 1958* (Cth). The applicant, who claimed to be a stateless Bidoon from Kuwait, had been granted a protection visa in 2014 following an earlier refusal and remission of the decision. The cancellation was based on the delegate’s finding that the applicant had provided incorrect information in his original protection visa application. The applicant sought review of this cancellation decision.

The primary legal issues before the Tribunal were whether the delegate’s decision to cancel the applicant’s visa was validly made, and if so, whether the visa should be cancelled. This involved determining if the Notice of Intention to Consider Cancellation (NOICC) issued to the applicant complied with the requirements of section 107 of the Act, which mandates the provision of particulars of alleged non-compliance. A preliminary issue also arose regarding the validity of a non-disclosure certificate issued by the department, which the Tribunal found to be invalid as it failed to identify the harm that would be caused by disclosure.

The Tribunal reasoned that the NOICC did not provide sufficient particulars of the alleged non-compliance. While the NOICC referred to specific questions in the applicant's protection visa application concerning his fear of returning to Kuwait and the ability of Kuwaiti authorities to protect him, it did not specify *why* the information provided was considered incorrect or what the correct information should have been. The Tribunal noted that section 109 of the Act requires the visa holder to have failed to comply with certain provisions, such as providing correct information, and that a valid notice under section 107 is a prerequisite for the cancellation power to arise. Without clear particulars of the alleged incorrect information, the notice was found to be deficient.

Consequently, the Tribunal concluded that the decision to cancel the applicant’s visa should be set aside. The delegate’s decision was remitted to the department for reconsideration, with the implication that a properly constituted notice under section 107 would need to be issued if the department intended to proceed with cancellation.