1802585 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 866 (Protection) visa of an applicant from Iraq. The dispute arose from the Department's assessment that the applicant had provided incorrect information in his visa application, specifically concerning his reasons for returning to Iraq on three occasions. The applicant contended that the notice of non-compliance issued by the Department was deficient and that his returns were for compelling family reasons, during which he took precautions to avoid persecution.

The Tribunal was required to determine whether the delegate was entitled to issue the notice of intention to consider cancellation (NOICC) under section 107 of the *Migration Act 1958* (Cth), whether the notice itself was valid, and if there was indeed non-compliance by the visa holder as described in the notice. If non-compliance was established, the Tribunal would then consider how the discretion to cancel the visa should be exercised. A key aspect of the applicant's argument was that the NOICC lacked sufficient particulars, failing to adequately explain the link between his travel to Iraq and the alleged incorrect information provided in his protection visa application, particularly regarding his fear of Al Qaeda.

The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107, the NOICC itself did not comply with the requirements for providing sufficient particulars of the alleged non-compliance. The applicant's representative argued that the notice failed to particularise the alleged non-compliance, did not explain the connection between entering Iraq and the applicant's claimed profile, and did not properly address the applicant's reasons for return, including his mother's illness and his efforts to remain hidden. The Tribunal considered this a threshold issue, noting that a failure to issue a valid notice under section 107 would preclude the exercise of the cancellation power.

Ultimately, the Tribunal concluded that there was no non-compliance by the applicant in the manner described in the section 107 notice. Consequently, the discretionary power to cancel the applicant's 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.