1616481 (Refugee)

This matter concerned an application to review the cancellation of the applicant's Subclass 866 (Protection) visa. The Minister's delegate had cancelled the visa on the grounds that the applicant had failed to comply with section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect answers in his protection visa application. Specifically, the applicant had stated he had not been known by any other names, was stateless from birth, and held no other citizenship, including for his wife and children. The applicant had also stated he was seeking protection in Australia because he feared returning to Iraq.

The legal issues before the Tribunal were whether the applicant had indeed failed to comply with section 101(b) of the Act, as particularised in the notice of intention to cancel the visa, and if so, whether the visa should be cancelled. Section 109 of the Act empowers the Minister to cancel a visa if the holder has failed to comply with certain provisions, including section 101, which requires that all questions on a visa application form be answered and that no incorrect answers be given. The exercise of this power is conditional on the Minister issuing a valid notice under section 107 of the Act, providing particulars of the alleged non-compliance.

The Tribunal found that the notice issued under section 107 complied with statutory requirements and that the delegate had reached the necessary state of mind to engage section 107. The Tribunal determined that there had been non-compliance by the applicant in the manner described in the section 107 notice. However, after considering all relevant circumstances, the Tribunal concluded that the visa should not be cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.