1716773 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's protection visa. The dispute arose from the Minister's belief that the applicant, who claimed to be a stateless Faili Kurd, had provided incorrect information regarding her citizenship status and that of her husband, suggesting she may have acquired Iranian citizenship through marriage.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* by providing incorrect information in her visa application, specifically concerning her stateless status and her husband's Iranian citizenship. The Tribunal also had to consider whether, if non-compliance was found, the discretionary power to cancel the visa should be exercised.

The Tribunal reasoned that the cancellation power under section 109 of the Act is engaged only if the Minister has first made a decision under section 108 that there was non-compliance, following a valid notice issued under section 107. In this instance, the section 107 notice particularised the alleged non-compliance as the applicant's claim of being stateless despite information suggesting her husband was an Iranian citizen, and that she would have acquired Iranian citizenship through marriage. However, the department did not provide the applicant with the specific details or basis for its belief that her husband was an Iranian citizen, nor did it attach any non-disclosure certificate to the intelligence report that apparently formed the basis of this suspicion. The Tribunal concluded that, in the absence of sufficient particulars provided to the applicant regarding the alleged basis for her husband's Iranian citizenship, there was no non-compliance established in the manner particularised in the section 107 notice. 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 866 (Protection) visa.