1619674 (Refugee)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 866 (Protection) visa. The applicant, an Egyptian national, had applied for a protection visa in December 2011, alleging he had encountered problems with fundamentalist Muslims and authorities in Egypt due to his religious activities. He stated he had relocated to Cairo and continued his church-related work, including involvement with youth groups and church building projects, which led to further difficulties and a period of detention. The Minister's delegate issued a notice under section 107 of the Migration Act 1958, alleging non-compliance due to incorrect answers provided in the visa application. The applicant had subsequently returned to Egypt for approximately six months in 2014.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect answers in his protection visa application, as alleged in the section 107 notice, thereby constituting non-compliance under section 109 of the Migration Act. This required the Tribunal to assess the veracity of the applicant's claims regarding his past difficulties in Egypt and whether his subsequent return to Egypt for a period negated his genuine fear of persecution. The Tribunal also considered the relevance of certain documents, including an interpreter service delivery form, which it deemed not relevant to the review.

The Tribunal reasoned that while the applicant's return to Egypt for six months in 2014 to spend time with his wife and children did not necessarily mean he did not genuinely fear returning to live in Egypt and resuming his religious activities, it was crucial to determine if his initial claims were factually incorrect. After careful consideration of all material, the Tribunal found that the applicant did not engage in the specific religious activities that he claimed had brought him to the attention of authorities and Salafists during his six-month visit. However, this finding did not lead the Tribunal to conclude that the applicant had provided incorrect answers in his original application in the manner described in the section 107 notice. Therefore, the Tribunal held that there was no non-compliance as alleged, and consequently, the discretionary power to cancel the visa under section 109 did not arise.

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