1732410 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an applicant who had returned to Iraq on two occasions after claiming to fear persecution. The dispute centred on whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing incorrect information in his visa application, and whether the notice issued by the Department of Home Affairs under section 107 of the Act was valid.

The Tribunal was required to determine two primary legal issues. Firstly, whether the applicant had failed to comply with the provisions of the Act, specifically concerning the provision of correct information in his visa application. Secondly, and crucially, whether the notice issued under section 107 of the Act, which particularised the alleged non-compliance, was valid and provided sufficient particulars to allow the applicant a real opportunity to understand and respond to the allegations. The validity of the section 107 notice was a prerequisite for the exercise of the Minister's power to cancel the visa under section 109.

The Tribunal reasoned that the exercise of the cancellation power under section 109 is conditional on the Minister issuing a valid notice under section 107, which must provide sufficient particulars of the alleged non-compliance. Drawing on the principles established in *Zhao v MIMA*, the Tribunal affirmed that the decision-maker must be satisfied that non-compliance has occurred based on available material, and a visa cannot be cancelled simply because the visa holder has failed to demonstrate why it should not be cancelled. While the Tribunal found that the applicant's voluntary travel to Iraq between October 2013 and May 2015 could indicate he did not hold the adverse profile as claimed, it ultimately focused on the validity of the Notice of Intention to Consider Cancellation (NOICC). The Tribunal concluded that the NOICC, despite the applicant's submissions to the contrary, was sufficient to fairly inform the applicant of the basis upon which cancellation was being considered, specifically in relation to section 101(b) of the Act, thereby equipping him to provide relevant information and make submissions.

The Tribunal set aside the decision to cancel the applicant's visa.