1820035 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant had previously been granted a Protection visa based on claims of being an Iranian-born stateless Kurd of Iraqi origin. The cancellation was initiated under section 109 of the Migration Act 1958, which permits the Minister to cancel a visa if the holder has failed to comply with certain provisions, including providing correct information in visa applications. The review was before the Tribunal, constituted by Member Nicole Burns.

The primary legal issue before the Tribunal was whether the notice of intention to consider cancellation issued by the Minister's delegate was a valid notice for the purposes of section 107 of the Act. Section 107 requires that such a notice provide particulars of the alleged non-compliance. The applicant's visa was purportedly cancelled due to concerns that she had not complied with section 101(b) of the Act, which mandates that visa applications be correct. Specifically, the notice alleged non-compliance based on the fact that the applicant's husband was an Iranian citizen, and under Iranian law, a woman marrying an Iranian citizen becomes an Iranian citizen by operation of law. This information, if true, would contradict the applicant's claim of statelessness.

The Tribunal reasoned that a valid notice under section 107 is a jurisdictional prerequisite for the exercise of the cancellation power under section 109. The notice issued in this case advised the applicant of concerns regarding her husband's Iranian citizenship and its implications for her statelessness claim. However, the Tribunal found that the notice did not fairly inform the applicant of the basis of the alleged non-compliance, particularly concerning the evidence relied upon by the Department to conclude her husband was an Iranian citizen. While the departmental file contained information about the husband reporting his Iranian passport lost, this information was not included in the notice. Consequently, the Tribunal concluded that the notice did not comply with the requirements of section 107.

As a result of the invalid notice, the Tribunal found that the power to cancel the applicant's visa under section 109 did not arise. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 visa.