2101784 (Migration) - [2022] AATA 4190

2101784 (Migration) [2022] AATA 4190 (13 October 2022)
DECISION RECORD
DIVISION:Migration & Refugee Division
REPRESENTATIVE:  Ms Latifa Al-Haouli (MARN: 1175724)
CASE NUMBER:  2101784
COUNTRY OF REFERENCE:                   Iran
MEMBER:Alison Murphy
DATE:13 October 2022
PLACE OF DECISION:  Melbourne
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.

Statement made on 13 October 2022 at 11:23am
CATCHWORDS
MIGRATION – cancellation – Iran – Return (Residence) (Class BB) visa – Subclass 155 (Five Year Resident Return) – incorrect information given in protection visa application – name, date of birth, citizenship and family composition – different name or different transliteration of same name – later changes of name notified to department – stateless Kuwait-born Bidoon or Iraqi citizen – sister a documented Iraqi citizen, apparently from birth – money transfers to sister and other apparent relatives – travel to Iraq on Australian titre de voyage without Iraqi visas – different names on driver’s licences from different Australian states and reference to Iranian licences – legislative requirements for department’s s 107 notice – specific allegations insufficiently particularised and particulars of sources of information not provided – no opportunity to meaningfully respond – notice defective and invalid and power to cancel does not arise – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth), ss 101(b), 107, 108, 109(1), 375A, 415(1)
CASES
CSH18 v MHA [2018] FCCA 3226
MIAC v Brar (2012) 201 FCR 240
SZEEM v Minister for Immigration [2005] FCMA 27
Zhao v MIMA [2000] FCA 1235
Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.
statement of decision and reasons
application for review

This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).
The applicant is a [Age]-year-old male who arrived in Australia by boat [in] January 2010 and sought protection. He was granted a protection visa on 18 October 2011 and the resident return visa on 22 April 2016.
The delegate cancelled the visa on the basis that it was considered the applicant gave incorrect information in the visa application. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant was represented in relation to the review.
For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.
ISSUES FOR determination
The issues in this case are:
·    whether the s 107 notice sent to the applicant is valid; if so,
·    whether the ground for cancellation is made out in respect of the applicant; and if so,
·    whether the visa should be cancelled.
For the following reasons, the Tribunal has concluded that the s 107 notice sent to the applicant was not valid. Therefore the decision to cancel the applicant’s visa should be set aside and a decision substituted that the power to cancel the visa under s 109 was not enlivened.
DOCUMENTS BEFORE THE TRIBUNAL
The Tribunal has been provided with the Department’s file in relation to the cancellation of the applicant’s resident return visa ([ID 1]). That file contains copies of documents from the applicant’s protection visa application file, including documents relevant to the Independent Merits Review. It also contains details of investigations and assessments undertaken by the Department into the applicant’s identity and citizenship and documents provided by Victoria Police concerning the applicant’s criminal offending. The delegate has placed restrictions on some of the material on the file by issuing certificates two certificates pursuant to s 375A of the Act, each dated 23 February 2021.
The first certificate states that disclosure of the document with TRIM reference number [ID 2] would be contrary to the public interest because it may prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance.
The second certificates states that disclosure of the documents with TRIM reference numbers [ID 3], [ID 4] and [ID 5] would be contrary to the public interest because:
- it may prejudice a current or pending investigation of a possible breach of the law or enforcement of the law in a particular instance - [ID 3];
- disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods – [ID 4];
- disclose lawful methods for preventing, detecting and investigating breaches or evasions of the law which would or be likely to prejudice the effectiveness of those methods - [ID 5].
Copies of the certificates were provided to the applicant’s representative who was invited to make submissions as to the validity of the certificates. On 3 October 2022, the applicant submitted that the second certificate appears to be valid but the first certificate may be invalid depending on the circumstances. In essence the Tribunal understands the submission to be that if the investigation of a possible breach of the law or enforcement of the law referred to in the certificated document has been closed or finalised since the certificate was issued, the public interest reason for the information’s non-disclosure would no longer exist. Lodged with that submission was a police certificate in respect of the applicant showing eleven criminal convictions in Victorian courts between 2012 and 2021 and a request that the Tribunal indicate whether the certificated information relates to the offences contained in the police certificate.
It is not possible for the Tribunal to ascertain with any degree of confidence whether the certificated information with TRIM reference number [ID 2] relates directly to any of the disclosable court outcomes in the police certificate provided by the applicant. While the certificated information in the documents with TRIM reference numbers [ID 3], [ID 4] and [ID 5] relates in part to the applicant’s criminal offending, it also canvasses the Department’s investigations of the applicant’s identity and citizenship as referenced in the s 107 notice and the delegate’s decision. As the certificates appear to be valid on their face and the certificated information appears to be consistent with the stated public interest reasons, the Tribunal finds the certificates to be valid.
Where a certificate is issued under s 375A, the Tribunal must do all things necessary to ensure that the document or information is not disclosed to any person other than a member of the Tribunal as constituted for the purposes of the particular review. As noted above, parts of the certificated information are disclosed in the s 107 notice and the delegate’s decision. Except as set out these reasons, the certificated information has not been provided or otherwise disclosed to the applicant by the Tribunal.
For the reasons set out below, the Tribunal set aside the delegate’s decision and substituted a new decision to the effect that the power to cancel the visa under s 109 was not enlivened. Should the Department take further steps to cancel the visa, the Tribunal considers that further consideration should be given as to:
a)whether there is still a current or pending investigation of a possible breach of the law or enforcement of the law as would justify the s 375A certificate in respect of [ID 2], or whether that investigation has since been finalised;
b)whether there is still a current or pending investigation of a possible breach of the law or enforcement of the law as would justify the s 375A certificate in respect of [ID 3], or whether such investigations have since been finalised;
c)whether all of the information contained in [ID 4] and [ID 5] continues to be of a confidential nature, such as would make its disclosure contrary to the public interest.
Legislative Framework
Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss 101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.
The exercise of the cancellation power under s 109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s 107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s 107, the power to cancel the visa does not arise. Extracts of the Act relevant to this case are attached to this decision.
The s 107 notice was sent to the applicant on 6 September 2019 and is eighteen pages long. Under the heading ‘Evidence of Non-compliance’, it states that the applicant arrived as an undocumented irregular maritime arrival [in] June 2010 and identified himself as [Name 1, spelling 1], a stateless Bidoon born in Kuwait formerly resident in Iraq. It noted that it was it on that basis that he was granted the protection visa on 18 October 2011.
The notice then sets out the applicant’s responses to some of the questions in Part C of the Form 866, namely questions 1, 3, 4, 19, 21, 22, 23, 41, 42, 43, 44, 45, 46 and 65. The notice then sets out the applicant’s claims for protection by reproducing much of the written statement of claims submitted by the applicant in support of the visa application.
Under the heading ‘Departmental Evidence - Name and Date of Birth’, the notice states:
22. The Department has received credible evidence that your true name is [Name 1, spelling 2] and that you are an Iraqi citizen. This is indicated by the following:
23. Upon arrival in Australia you identified yourself as [Name 1, spelling 1], born [Date, Year 1], but at your Entry Interview you claimed you were born in [Year 2, one year earlier].
24. On 18 June 2014 you lodged a 1022 Notification of changes in circumstances form to change your name from [Name 1, spelling 1] to [Name 2].
25. On 29 October 2015 you lodged a 1022 Notification of changes in circumstances form to change your name from [Name 2] to [the applicant].
26. At the Identity interview on 24 July 2018 for the purposes of your citizenship application, you stated [Surname] was your paternal grandfather’s name and after his passing you changed your family name as a way of honouring him.
27. To date, you have failed to provide the Department with any documentary evidence to support your claimed identity.
Under the heading ‘Departmental Evidence – Family and Nationality’, the notice states:
28. On arrival to Australia, you declared the below family composition. You have never declared any siblings:

Family Name Given Name DOB Citizenship

Father [Family name] [Given name] [Year] Stateless

Mother [Family name] [Given name] [Year] Stateless
29. It was put to you at your identity interview on 24 July 2018 that the Department has information which indicates you have a sister named [Ms A] who is a documented Iraqi citizen. It was put to you that it appears your sister acquired citizenship at birth and therefore your parents must also be Iraqi citizens.
30. As your father appears to be an Iraqi citizen, this follows that you are also an Iraqi citizen
and were so at time of your Protection visa application.[1]
31. At the Identity Interview on 24 July 2018 you claimed your parents were currently residing in Iraq where they are being persecuted due to their stateless status. You also stated you were unaware of their status or if they held identity cards. You claimed they were unable to resolve their citizenship status but could apply to renew their Green cards.
32. It was noted at the Identity interview you were unable to provide a basic description of the entitlements afforded to Green card holders. You also stated you were unable to attend school and your parents were unable to work as they had no rights in Iraq.
[1] DFAT COUNTRY INFORMATION REPORT IRAQ, 9 October 2018, P.31

Under the heading ‘Departmental Evidence – Identity Documents’, the notice states:
33. In your Bio Data interview conducted on 26 June 2010, you claimed you were issued with a Kuwaiti Birth Certificate and it was located in Iraq.
34. At your Entry interview conducted on 20 July 2010, you stated you had been issued with a Kuwaiti Birth Certificate and Civil card, both issued in Kuwait. You claimed to have held a Green Card issued in Iraq which allowed you to maintain your residency. You claimed all these documents were lost in transit to Australia.
35. At your Identity interview on 24 July 2018, you stated your bag containing your documents fell overboard and that you were unable to apply for any documents.
36. Information received from various roads and traffic authorities across Australia revealed you have held multiple drivers licences in different identities across different states. However, there is no record on departmental systems of you residing in Queensland, South Australia or ACT.
37. Access Canberra advised you have been issued a licence containing the following details:
·ACT Licence no. [redacted by Tribunal]. Name: [Name 1, spelling 1]
38. VicRoads advised you have been issued licences containing the following details:
- VIC Licence no. [redacted by Tribunal]. Name: [Name 1, spelling 1]
- VIC Licence no. [redacted by Tribunal]. Name: [Name 2]
39. Service NSW advised you have been issued a licence containing the following details:
·NSW Licence no. [redacted by Tribunal]. Name: [Name 2]
40. Service SA advised you have been issued a licence containing the following details:
- SA Licence no. [Number 1]. Name: [Name 2]
41. QLD Transport and Main Roads advised you have been issued a licence containing the following details:
- QLD Licence no. [Number 2]. Name: [the applicant]
42. Checks with VicRoads revealed you presented an Iranian driver’s licence [Number 3] to
obtain Victorian licence [Number 4] in the name of [Name 2]. However, the authenticity of
the Iranian licence was not verified. Throughout your dealings with the Department you have
not presented this document to the Department in support of your identity.
43. A police report completed by VICPOL in relation to your motorcycle accident [in]
December 2016 outlined the field interview conducted by police officers with you. In the interview you stated you were born in Iran and held an Iranian driver’s licence, despite consistently advising the Department you were born in Kuwait.
Under the heading ‘Departmental Evidence – Financial Records’, the notice states:
44. Financial transactions show you sent money to [Ms A] in
[Country] and the description of this transaction was recorded as “Family Support,”
strengthening claims that you are siblings.
45. Financial transactions indicate that you sent money to two other people by the names [Mr B] and [Mr C] in Nasiriyah, Iraq. Given you have utilised aliases which include these same surnames, I consider that they are additional, undeclared relatives.
Under the heading ‘Departmental Evidence – Travel History’, the notice states:
46. Entry stamps on your Australian Titre De Voyage indicate that you entered Iraq [in] February 2015 and departed [in] March 2015. Your incoming passenger card also claims that you had been in Iraq for the duration of that trip, without evidence of an Iraqi visa.
47. Further date stamps in your Titre De Voyage show you travelled to Iraq on [Day 1] May 2013 and departed [Day 2] May 2013, again without an Iraqi visa.
48. Since to enter Iraq, a person must hold a valid visa or be an Iraqi citizen, your lack of entry permit indicates it is highly likely you provided evidence of your Iraqi citizenship or Iraqi
origins which would make you exempt from applying for a visa beforehand.[2]
49. I therefore consider that you are in possession of documents that would verify your nationality and identity.
[2] “Entry and Exit,” Iraq: >
Under the heading ‘Consideration of Evidence’, the notice states:
50. The grant of your Protection (subclass 866) visa was based on you satisfying the Minister you engaged in Australia’s protection obligations under the 1951 Refugees Convention and the 1967 Protocol Relating to the Status of Refugees. Your claims were based on the persecution and discrimination you experienced because you claimed to be stateless Bedoon, born in Kuwait and residing in Iraq.
51. Due to your statelessness you claimed you were denied the same rights afforded to Iraqi
citizens, such as access to the health and education systems and the ability to obtain
employment. You stated you were not afforded the protection of the Iraqi government.
These claims were fundamental to the determination made by the Department that you are
a person to whom Australia has protection obligations.
52. I consider that your true identity is [Name 1, spelling 2] and that you have
family members onshore and offshore who have declared their Iraqi citizenship, which you
withheld from the Department to conceal your Iraqi Citizenship.
53. You claimed to be from Kuwait in your Protection visa application but the evidence indicates you have Iraqi identity documents which allowed you to enter Iraq without an Iraqi visa.
54. Based on the Iranian driver’s licence you provided to VicRoads, it appears you have residency rights in Iran.
The s 107 notice then goes on to allege that the applicant did not comply with s 101(b) because he provided incorrect information in his protection visa application in the following respects:
·At question 4 of Part C of Form 866, which asked ‘What other names have you been known by’ to which the applicant answered ‘none’. The notice alleges this information is incorrect because departmental information indicates that his true name is likely to be [Name 1, spelling 2];
·At question 19 of Part C of Form 866, which asked ‘Your citizenship at birth’ to which the applicant answered ‘stateless’. The notice alleges this information is incorrect because departmental information indicates that he has been an Iraqi citizen since birth by virtue of his family members holding Iraqi citizenship. Country information stipulates that citizenship is the right of every Iraqi and is the basis for nationality, noting that anyone born to an Iraqi mother or father is Iraqi.[3] Furthermore, your sister, [Ms A] is a documented Iraqi citizen, indicating that your parents are Iraqi citizens and therefore you also hold Iraqi citizenship by virtue of birth.
·At question 21 of Part C of Form 866, which asked ‘Do you hold any other citizenship or are you a national of any other country’ to which the applicant answered ‘No’. The notice alleges this information is incorrect because departmental information indicates that he is an Iraqi citizen and was so at the time of the protection visa application.
·At question 22 of Part C of Form 866, which asked ‘Do you have a right to enter or reside in, whether temporarily or permanently, any country(s) other than your country(s) of nationality or your former country(s) of habitual residence’ to which the applicant answered ‘No’. The notice alleges this information is incorrect because departmental information indicates that he has the right to enter and reside in Iraq on a permanent basis.
·At question 23 of Part C of Form 866, which asked ‘If you are stateless, how, when and why did you lose your citizenship’ to which the applicant answered ‘Born without citizenship’. The notice alleges this information is incorrect because departmental information indicates that he holds Iraqi citizenship and therefore was not born stateless.
·At question 42 of Part C of Form 866, which asked ‘Why did you leave your country’ to which the applicant answered ‘Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 20 August 2010 and my interview of 23 August 2010 and all documentation in support of my request for independent merits review and my hearing on 9 June 2011’. The notice alleges this information is incorrect because the applicant claimed in his protection visa application to be a stateless Bidoon who would face persecution due to his statelessness, while departmental information indicates that he holds Iraqi citizenship and would have had access to the government services, social services, benefits and protections available to all Iraqi citizens.
·At question 43 of Part C of Form 866, which asked ‘What do you fear will happen to you if you go back to that country’ to which the applicant answered ‘Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 20 August 2010 and my interview of 23 August 2010 and all documentation in support of my request for independent merits review and my hearing on 9 June 2011’. The notice alleges this information is incorrect because the applicant claimed in his protection visa application to fear being imprisoned and ill-treated by Iraqi authorities due to being a stateless Bidoon and a Sunni Muslim in Iraq on a temporary residence permit, but as an Iraqi citizen he would not face persecution due to statelessness;
·At question 44 of Part C of Form 866, which asked ‘Who do you think may harm/mistreat you if you go back’ to which the applicant answered ‘Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 20 August 2010 and my interview of 23 August 2010 and all documentation in support of my request for independent merits review and my hearing on 9 June 2011’. The notice alleges this information is incorrect because the applicant claimed a fear of the Iraqi authorities based on his statelessness, while departmental information indicates that he holds Iraqi citizenship held it at the time of the visa application.
·At question 45 of Part C of Form 866, which asked ‘Why do you think this will happen if you go back’ to which the applicant answered ‘Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 20 August 2010 and my interview of 23 August 2010 and all documentation in support of my request for independent merits review and my hearing on 9 June 2011’. The notice alleges this information is incorrect because the applicants claims to have been denied the most basic of human rights in Iraq on the basis that he and his family were Bidoon and not eligible for citizenship, whereas the evidence before the Department indicates that he holds Iraqi citizenship and held it at the time of the protection visa application.
·At question 46 of Part C of Form 866, which asked ‘Why do you think this will happen if you go back’ to which the applicant answered ‘Please refer to all information provided in support of my request for refugee status assessment including but not limited to my statutory declaration made on 20 August 2010 and my interview of 23 August 2010 and all documentation in support of my request for independent merits review and my hearing on 9 June 2011’. The notice alleges this information is incorrect because the applicant’s claims were based on his status as a stateless person, whereas the evidence before the Department indicates that he holds Iraqi citizenship and would not be of interest to the Iraqi authorities for reason of being a stateless and undocumented person.
[3] DFAT COUNTRY INFORMATION REPORT IRAQ, 9 October 2018, P.31

The s 107 notice went on to state that based on this information, it was considered the applicant had not complied with s 101(b) of the Act in relation to his answers to questions 19, 21, 22, 23, 42, 43, 45 and 46 and his protection visa was liable for cancellation under s 109 of the Act.
The s 107 notice does not end there however. Paragraphs 68 – 89 indicate the Department also intends to reassess Australia’s non-refoulement obligations towards the applicant. It sets out additional information including country information and invites the applicant’s response, noting that response may be used to re-assess Australia’s non-refoulement obligations towards the applicant.
The s 107 notice invited the applicant to comment in writing within 14 days.
The applicant’s response to the s 107 notice
The applicant and responded to the s 107 notice in a series of emails dated 9, 10 and 11 October 2019. In brief summary it was submitted that:
a)The notice did not sufficiently particularise the alleged breaches of s 101 and therefore did not engage s 107;
b)that there is no evidence to suggest that the applicant had given incorrect information about his identity as a Kuwaiti born Bidoon, particularly in light of the Kuwaiti documents he had provided; and
c)even if a breach of s 101 was established, the visa should not be cancelled in view of his particular circumstances.
Detailed legal submissions were provided on each of the above points, together with a large number of supporting documents including medical records, identity documents and travel details.
A delegate of the Minister purported to cancel the visa on 12 November 2020. In an immediate response to the purported cancellation, the applicant’s representative submitted that the cancellation decision was legally defective as the delegate had failed to consider or engage with the extensive submissions made regarding the applicant’s likely circumstances on return to Iraq or evidence presented of the applicant’s marriage to an Australian citizen.
On 17 November 2020, an Assistant Manager of the Department’s General Cancellation Network wrote to the applicant advising that the Department had considered the complaint of the applicant’s representative in relation to the purported cancellation decision dated 12 November 2020 and had decided the resident return visa was currently in effect. That correspondence indicated that the Department would make a fresh decision on whether or not to cancel the visa. Further submissions were subsequently provided to the department by the applicant’s representative.
On 15 November 2021, a different delegate of the Minister made a decision to cancel the applicant’s resident return visa based on the s 107 notice dated 6 September 2019.
The s 107 notice
Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s 107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s 107. Therefore, if a notice is to be given under s 107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions. I accept the delegate had reached the requisite state of mind.
Sufficiency and validity of the notice
In considering the sufficiency of the notice, the Tribunal notes the s 107 notice is a critical step in the cancellation process as it provides the visa holder with an opportunity to show that the grounds for cancellation do not exist, or, if they do exist, to put forward reasons why the discretion to cancel should not be exercised.
In relation to the sufficiency and validity of the notice, it was contended in the submissions dated 11 October 2019 that the notice did not comply with the requirements of s 107 because it failed to provide particulars of the source of the information, thus preventing the applicant from providing a meaningful response to the notice. In particular it notes that the notice lists responses to various questions provided by the applicant in his Form 866, then excerpts the entirety of his statement of claims, with the result that it cannot be established precisely which of those claims are said to be incorrect. It submits that the specific allegations set out from page 6 of the notice are insufficiently particularised and unclear.
Following the decision to cancel the visa on 15 February 2021, there was a change of representative representing the applicant. In relation to the issue of sufficiency of the s 107 notice the current representative submitted that the notice was confusing, as the evidence relied upon was not tied to the particulars of non-compliance and further information was included in the decision to cancel that was not set out in the s 107 notice. It was further submitted that information in the applicant’s Independent Merits Review was selectively used to destroy his ability to respond to one of the discretionary factors under reg 2.41(c), that is whether the decision to grant the visa was based, wholly or in part, on the incorrect information. The applicant’s current representatives submit that notwithstanding the difficulties posed by the notice, the notice is valid. However for the following reasons the Tribunal does not accept that submission.
In Zhao v Minister for Immigration and Multicultural Affairs, the Full Court stated that:
Section 119 requires particulars of the grounds relied upon to be included in the notice. The level of particularity is not specified. It must serve the statutory purpose. That is to say it must be sufficient, when read in conjunction with the supporting information, to fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to provide such relevant information as may be available and to make such submissions as may be open.[4]
[4] Zhao v MIMA [2000] FCA 1235 at [25]
While the Court in Zhao was considering a notice under s 119 of the Act, it was cited with approval by the Full Federal Court in MIAC v Brar which considered that it was of assistance in terms of the proper interpretation and application of s 107.[5]
[5] (2012) 201 FCR 240 at [57]
In SZEEM v Minister for Immigration,[6] the court noted that there are many authorities concerning situations where the potential consequences of the decision-making are a serious deprivation of rights, which have interpreted a statutory requirement of particularity in a manner which ensures that the person in question has a real opportunity to understand and deal with the matters alleged. The court went on to state:
On these authorities, I consider that in notices under s.107 it is "necessary for the notice to identify in clear terms: all charges to be relied on, the relevant legislative provisions or rules giving jurisdiction; the particular grounds relied upon where there are several alternatives; and particulars of the act, matter or allegations forming the basis for the charge" (c.f. the extract from Aronson and Dyer, Judicial Review of Administrative Act, 2^nd ed, quoted by Weinberg J in Gribbles Pathology (Vic) Pty Ltd v Cassidy[2002] FCA 859; (2002) 122 FCR 78 at 100, and the cases cited by his Honour). The presenter of a s.107 notice must bear in mind the procedural fairness objectives of the requirement to give particulars: the recipient must be told "precisely what he has to meet" (c.f. Hunt J in Etherton v Public Service Board[1983] 3 NSWLR 297 at 445 and other cases cited by Davies J in Yung v Adams(1997) 80 FCR 453 at 455-457, approved in Adams v Yung(1998) 83 FCR 248 at 297). The importance of this in the present procedure is strengthened, rather than weakened, because the legislature has made satisfaction of non-compliance "in the way described in the notice" a precondition to the powers of the decision-makers at first instance and on appeal.
[6] [2005] FCMA 27 at [39]
In this case I consider the s 107 notice is clearly deficient because it does not allow the applicant (or the Tribunal on review) to fairly understand what information is said to be incorrect and the reasons why, nor does it give sufficient particulars of the central issues to allow the applicant an opportunity to meaningfully respond.
Firstly, the notice does not contain sufficient particulars of the allegations that are central to the issues in this case as would allow the applicant to meaningfully respond:
·Under the heading ‘Departmental Evidence – Family and Nationality’, the notice alleges that the applicant has a sister that he has not disclosed, [Ms A], who is a documented Iraqi citizen. It states that she ‘appears’ to have acquired citizenship at birth with the result that her parents and the applicant himself must also be Iraqi citizens. It is clear that the issue of the applicant’s potential Iraqi citizenship is central to the decision to cancel the notice and his alleged familial link to [Ms A] forms the basis of the Department’s belief that he is an Iraqi citizen and not stateless as claimed. However the notice fails to provide in even the most general of terms the source or context of the information about [Ms A]’s alleged relationship to the applicant and his parents, nor the basis of the department’s assertion that she acquired Iraqi citizenship at birth.
·Similarly the ‘Departmental Evidence - Name and Date of Birth’ section alleges that the applicant has given incorrect evidence about his name, identifying himself as [Name 1, spelling 1] born [Date, Year 1], when the Department has credible evidence that his true name is [Name 1, spelling 2]. It does not give the source, context or particulars of the ‘credible evidence’ to which it refers and the name alleged to be the applicant’s true name appears to be merely a transliteration variant of the name provided by the applicant himself.
·As noted above, the Australian courts have held that s 107 notices must meet the ‘procedural fairness objectives of the requirement to give particulars: the recipient must be told "precisely what he has to meet"’.[7] The failure to provide any basis for the Department’s assertion that the applicant’s true name is [Name 1, spelling 2] and that he is the brother of [Ms A] who obtained Iraqi citizenship at birth fails to comply with procedural fairness requirements because it does not allow the applicant to meaningfully respond to that allegation.
[7] SZEEM v Minister for Immigration [2005] FCMA 27 at [39]
Secondly the notice contains a number of direct allegations that the applicant provided incorrect information in the visa application, yet does not ultimately include these matters in the ‘Consideration of Evidence’ section which purports to set out the details of the incorrect information provided by the applicant. As a consequence, it is unclear what incorrect information is being considered for the cancellation of the visa. For example:
·The ‘Departmental Evidence - Name and Date of Birth’ section alleges that the applicant has given incorrect evidence about his date of birth, identifying himself as [Date, Year 1] in the visa application, when he stated in his entry interview that he was born in [Year 2, one year earlier] not [Year 1]. While the body of the notice alleges that the applicant gave incorrect information about his date of birth, it does not go on to list this as a breach of s 101(b) under the heading ‘Consideration of Evidence’.
·Similarly under the heading ‘Departmental Evidence – Identity Documents’ the notice alleges that the applicant holds an Iranian driver’s license and told Victorian police that he was born in Iran despite advising the Department he was born in Kuwait. Despite the clear implication that the applicant may be an Iranian citizen, the notice does not go on to list either his place of birth or his potential Iranian citizenship as a breach of s 101(b) under the heading ‘Consideration of Evidence’. In particular the notice does not suggest that the applicant gave incorrect information at question 21 which asks whether he is a citizen of any other country, nor at question 22 which asks whether he has a right to enter and reside in any other country.
Thirdly the notice contains information which is prejudicial to the applicant without any explanation as to how or if it is relevant to any breach of s 101(b). Again, it is unclear what information is being considered for the cancellation of the visa. For example:
·The notice sets out the details of a number of Australian identity documents said to be held by the applicant under different names in different states and alleges that Departmental records do not indicate he resided in some of those states. Yet nothing in the remainder of the notice suggests that these matters are in any way relevant to the information provided by the applicant in his protection visa application, nor does the notice suggest that any of these names should have been disclosed at question 4;
·Similarly under the heading Departmental Evidence – Financial Records’, it is alleged that the applicant has sent money to two people in Nasiriyah, Iraq by the names of [Mr B] and [Mr C] and alleges that they are undeclared relatives. The notice does not indicate how or why this is relevant to whether the applicant provided incorrect information in his protection visa application, noting that the Form 866 only requires the applicant to identify members of the same family unit (being parents, siblings, children, step-parents, step-children and step-siblings). Having asserted that they are undeclared relatives, the s 107 notice does not go on to list this as a breach of s 101(b) under the heading ‘Consideration of Evidence’ or otherwise suggest that the applicant gave incorrect information in relation to those persons.
Fourthly, the s 107 notice seeks the applicant’s response to a large amount of further information that is not said to be relevant to establishing the ground for cancellation under s 107, rather it is presented as information relevant to the reassessment of any non-refoulement obligations to the applicant. That information runs to almost four pages of the notice and confuses the issues further. In parts that section re-states the applicant’s claims for protection and recites again why the Department believes those claims are incorrect. It also sets out detailed country information that it suggests indicates the applicant would not be at risk of harm in Iran. It is apparent from the Departmental file that the information cited in this section was used to reassess the applicant’s protection claims in an International Treaties Assessment dated 8 May 2020, prior to the decision to cancel the visa.
The conflation of these two quite separate tasks, the first being a statutory obligation to provide particulars of the alleged non-compliance in order to allow the applicant an opportunity to provide information to show he had complied with s 101(b) and the second being an invitation to respond to the Department’s possible reassessment of the applicant’s protection claims on the basis that he had in fact provided incorrect information about his statelessness, further confuses the central statutory task to provide particulars of the non-compliance.
For all of the above reasons the Tribunal finds that the s 107 notice dated 6 September 2019 is defective because it does not provide the applicant with sufficient particulars to be able to meaningfully respond to the information, nor does fairly inform the visa holder of the basis upon which cancellation is being considered so that the visa holder is adequately equipped to respond.
Consequences of a defect in the s 107 Notice
The terms of ss 108 and 109(1) indicate that the procedural requirements set out in s 107 are mandatory preconditions to the exercise of the power to cancel. The Australian courts have held that a minor or insignificant error which does not go to the substance of the allegation of non-compliance will not deprive a decision maker of jurisdiction under ss 108 and 109 where adequate particulars are otherwise provided.[8]
[8] MIAC v Brar (2012) 201 FCR 240 [61]; Kang v MIAC [2013] FCA 711
On review, the Tribunal remains bound to apply the laws defining the power of the primary decision maker and has no greater or different substantive powers than the primary decision maker.[9] If no particulars are given in the s 107 notice, or if those particulars are insufficient to enable the visa holder to respond to the allegation, it will not be possible to make the decision required by s 108(b) and the power to cancel the visa will not arise.[10]
[9] Section 415(1) of the Act; CSH18 v Minister for Home Affairs [2018] FCCA 3226
[10] SZEEM v MIMIA [2005] FMCA 27
For these reasons, the Tribunal finds that the notice was not a valid notice for the purposes of s 107. As a valid s 107 notice is a precondition to the exercise of the power under s 109, the power to cancel the visa did not arise. As such the Tribunal must set aside the delegate’s decision and substitute a new decision to the effect that the power to cancel the visa under s 109 was not enlivened.
decision
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa.
Alison Murphy
Member

ATTACHMENT – Migration Act 1958 (extracts)
5Interpretation
(1)In this Act, unless the contrary intention appears:
bogus document, in relation to a person, means a document that the Minister reasonably suspects is a document that:
(a)     purports to have been, but was not, issued in respect of the person; or
(b)     is counterfeit or has been altered by a person who does not have authority to do so; or
(c)      was obtained because of a false or misleading statement, whether or not made knowingly.
97Interpretation
In this Subdivision:
application form, in relation to a non‑citizen, means a form on which a non‑citizen applies for a visa, being a form that regulations made for the purposes of section 46 allow to be used for making the application.
passenger card has the meaning given by subsection 506(2) and, for the purposes of section 115, includes any document provided for by regulations under paragraph 504(1)(c).
Note:Bogus document is defined in subsection 5(1).
98Completion of visa application
A non‑citizen who does not fill in his or her application form or passenger card is taken to do so if he or she causes it to be filled in or if it is otherwise filled in on his or her behalf.
99Information is answer
Any information that a non‑citizen gives or provides, causes to be given or provided, or that is given or provided on his or her behalf, to the Minister, an officer, an authorised system, a person or the Tribunal, or the Immigration Assessment authority, reviewing a decision under this Act in relation to the non‑citizen’s application for a visa is taken for the purposes of section 100, paragraphs 101(b) and 102(b) and sections 104 and 105 to be an answer to a question in the non‑citizen’s application form, whether the information is given or provided orally or in writing and whether at an interview or otherwise.
100Incorrect answers
For the purposes of this Subdivision, an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect.
101Visa applications to be correct
A non‑citizen must fill in or complete his or her application form in such a way that:
(a)all questions on it are answered; and
(b)no incorrect answers are given or provided.
107Notice of incorrect applications
(1)If the Minister considers that the holder of a visa who has been immigration cleared (whether or not because of that visa) did not comply with section 101, 102, 103, 104 or 105 or with subsection (2) in a response to a notice under this section, the Minister may give the holder a notice:
(a)     giving particulars of the possible non‑compliance; and
(b)     stating that, within a period stated in the notice as mentioned in subsection (1A), the holder may give the Minister a written response to the notice that:
(i)if the holder disputes that there was non‑compliance:
(A)shows that there was compliance; and
(B)in case the Minister decides under section 108 that, in spite of the statement under sub‑subparagraph (A), there was non‑compliance—shows cause why the visa should not be cancelled; or
(ii)if the holder accepts that there was non‑compliance:
(A)give reasons for the non‑compliance; and
(B)shows cause why the visa should not be cancelled; and
(c)      stating that the Minister will consider cancelling the visa:
(i)if the holder gives the Minister oral or written notice, within the period stated as mentioned in subsection (1A), that he or she will not give a written response—when that notice is given; or
(ii)if the holder gives the Minister a written response within that period—when the response is given; or
(iii)otherwise—at the end of that period; and
(d)     setting out the effect of sections 108, 109, 111 and 112; and
(e)      informing the holder that the holder’s obligations under section 104 or 105 are not affected by the notice under this section; and
(f)      requiring the holder:
(i)to tell the Minister the address at which the holder is living; and
(ii)if the holder changes that address before the Minister notifies the holder of the Minister’s decision on whether there was non‑compliance by the holder—to tell the Minister the changed address.
(1A)The period to be stated in the notice under subsection (1) must be:
(a)     in respect of the holder of a temporary visa—the period prescribed by the regulations or, if no period is prescribed, a reasonable period; or
(b)     otherwise—14 days.
(1B)Regulations prescribing a period for the purposes of paragraph (1A)(a) may prescribe different periods and state when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a)     visas of a stated class; or
(b)     visa holders in stated circumstances; or
(c)      visa holders in a stated class of people (who may be visa holders in a particular place); or
(d)     visa holders in a stated class of people (who may be visa holders in a particular place) in stated circumstances.
(2)If the visa holder responds to the notice, he or she must do so without making any incorrect statement.
108Decision about non‑compliance
The Minister is to:
(a)consider any response given by a visa holder in the way required by paragraph 107(1)(b); and
(b)decide whether there was non‑compliance by the visa holder in the way described in the notice.
109Cancellation of visa if information incorrect
(1)The Minister, after:
(a)     deciding under section 108 that there was non‑compliance by the holder of a visa; and
(b)     considering any response to the notice about the non‑compliance given in a way required by paragraph 107(1)(b); and
(c)      having regard to any prescribed circumstances;
may cancel the visa.
(2)If the Minister may cancel a visa under subsection (1), the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.

Family Name	Given Name	DOB	Citizenship
Father	[Family name]	[Given name]	[Year]	Stateless
Mother	[Family name]	[Given name]	[Year]	Stateless