1723299 (Refugee)

This matter concerned an application by a visa holder to review the decision to cancel their Subclass 866 (Protection) visa. The applicant, a Shi’ite Muslim from Iraq, had been granted the visa in 2013 based on a well-founded fear of persecution due to imputed political opinion. The Minister's delegate sought to cancel the visa under section 109 of the *Migration Act 1958* (Cth) on the grounds that the applicant had provided incorrect answers in their protection visa application, specifically concerning their fear of the Mahdi Army and the ability of Iraqi authorities to protect them.

The primary legal issue before the court was whether the notice of intention to cancel the visa, issued under section 107 of the Act, was valid. The applicant contended that the notice did not comply with the requirements of section 107, which would therefore preclude the Minister from exercising the cancellation power under section 109. The court was required to determine if the particulars provided in the notice adequately informed the applicant of the alleged non-compliance with section 101(b) of the Act, which mandates that visa applications be filled in without incorrect answers.

The court found that the notice issued under section 107 was not valid. It reasoned that a valid notice, providing particulars of the alleged non-compliance, is a mandatory prerequisite for the exercise of the cancellation power under section 109. As the notice failed to meet the statutory requirements, the power to cancel the visa did not arise. Consequently, the delegate's decision to cancel the visa was found to be unlawful.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 866 (Protection) visa.