2203635 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Subclass 155 (Five Year Resident Return) visa. The applicant had previously arrived in Australia as an irregular maritime arrival and was granted a Protection (Subclass 866) visa in 2011. The cancellation decision was based on allegations of non-compliance with section 101 of the *Migration Act 1958* (Cth), which requires visa applicants to provide correct information. The appeal was heard by Deputy President Antoinette Younes.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101 of the Act, as particularised in the Notice of Intention to Cancel Visa (NOICC). This involved determining whether the information provided by the applicant was "incorrect" within the meaning of the Act, and if so, whether the discretionary power to cancel the visa arose. The Tribunal also considered the applicant's extensive returns to Iraq and the nature of their fear of harm, which related to their tribe rather than Iraqi authorities.

The Tribunal reasoned that the cancellation power under section 109 of the Act is engaged only if there has been non-compliance with specific sections, including section 101, and a valid notice under section 107 has been issued. While the Tribunal found the section 107 notice to be valid and that the delegate had reached the necessary state of mind to engage section 107, it ultimately concluded that there was no non-compliance by the applicant in the manner described in the NOICC. Consequently, the discretionary power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.