1902045 (Migration)

This matter concerned an application by Mr A for review of a decision to cancel his Subclass 155 (Five Year Resident Return) visa. Mr A, who was born stateless in Iran to Iraqi parents, had previously been granted a Protection visa. The cancellation of his Resident Return visa was initiated by a notice issued under s.107 of the *Migration Act 1958* (Cth), which alleged non-compliance with the Act. The Tribunal was satisfied that the delegate had reached the necessary state of mind to engage s.107 and that the notice issued complied with statutory requirements.

The primary legal issue before the Tribunal was whether Mr A had failed to comply with the provisions of the *Migration Act 1958* (Cth) as alleged in the notice of intention to cancel his visa. Specifically, the Tribunal had to determine if Mr A had provided incorrect information or failed to notify the Department of Home Affairs of incorrect information or changes in circumstances, as contemplated by ss.101, 102, 103, 104, or 105 of the Act, and whether the notice issued under s.107 was valid.

The Tribunal found that it was not satisfied that Mr A had engaged in non-compliance as described in the s.107 notice. The reasoning focused on the evidence presented, including Mr A's background and the circumstances surrounding the alleged non-compliance, which related to a lost and subsequently found visa evidence card. The Tribunal concluded that the discretionary power to cancel the visa did not arise because the necessary preconditions of non-compliance had not been met to the Tribunal's satisfaction.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel Mr A's Subclass 155 visa.