1907125 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Return (Residence) (Class BB) visa, specifically a Subclass 155 (Five Year Resident Return) visa. The cancellation was based on allegations of providing incorrect answers in a previous protection visa application, relating to the applicant's citizenship and background as an undocumented stateless Faili Kurd or Iranian or Iraqi Kurdish citizen. The applicant contended that their parents' Iranian birth certificates and Iranian law conferred citizenship at birth, and they possessed an Iranian driver's licence and passport, and had attempted to regain Iraqi citizenship. The appeal was heard by Alison Murphy, Member, of the Tribunal.

The primary legal issues before the Tribunal were whether the notice issued under section 107 of the Migration Act 1958 was valid and sufficient, and whether the decision-maker was genuinely satisfied that the applicant had failed to comply with section 101 of the Act. Specifically, the Tribunal had to determine if the notice provided adequate particulars of the alleged non-compliance, including the source of information, to allow the applicant a meaningful opportunity to respond. The Tribunal also considered whether the notice adequately addressed the applicant's potential Iraqi citizenship.

The Tribunal reasoned that the section 107 notice was invalid because it failed to provide the source of the information regarding the applicant's parents' purported citizenship, which was based on a single, questionable document provided by the applicant's sister. This lack of transparency prevented the applicant from having a real opportunity to understand and meaningfully respond to the allegations. Furthermore, even if the notice were considered valid, the Tribunal found that the decision-maker had not reached a genuine state of satisfaction that the applicant had non-complied with the Act in the manner described in the notice, particularly given the absence of any reference to the applicant's possible Iraqi citizenship.

Consequently, the Tribunal set aside the delegate's decision to cancel the visa and substituted a new decision that the power to cancel the visa under section 109 of the Migration Act 1958 was not enlivened.