1619833 (Refugee)

This matter concerned an appeal by a national of Iraq against the cancellation of her Subclass 866 (Protection) visa. The applicant, who had previously been recognised as a refugee, had failed to disclose the existence of her husband's second wife in her protection visa application. The Minister had considered cancelling the visa under section 109(1) of the *Migration Act 1958* (Cth) for failing to comply with section 101 of the Act, which requires visa applications to be completed without incorrect answers. The decision under review was made by the Refugee Review Tribunal (RRT).

The primary legal issue before the Tribunal was whether the Minister's power to cancel the applicant's visa under section 109(1) of the Act had arisen. This required determining whether the applicant had failed to comply with section 101 by providing an incorrect answer in her visa application, and whether the Minister had issued a valid notice under section 107 of the Act particulars of the alleged non-compliance. The Tribunal also considered whether the circumstances that permitted the grant of the visa had ceased to exist, as per section 116(1)(a) of the Act.

The Tribunal reasoned that the exercise of the cancellation power under section 109(1) is contingent on the Minister issuing a valid notice under section 107, which must provide particulars of the alleged non-compliance. The Tribunal found that the applicant had a well-founded fear of persecution for reasons of political opinion, her occupation, and her Shia Muslim religion, as well as membership in particular social groups including her family and women. The Tribunal concluded that the decision to cancel the applicant's visa should be set aside.

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