1700606 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 866 (Protection) visa of an applicant from Iran. The cancellation was based on allegations that the applicant had provided incorrect information, specifically an incorrect name and date of birth, in their visa application. The applicant claimed to have converted to Christianity and faced persecution from the Basij militia in Iran, leading to an arrest warrant.

The Tribunal was required to determine whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing incorrect answers in their visa application, and if so, whether the Minister's discretion to cancel the visa was enlivened. The core legal issue revolved around the interpretation of "incorrect answers" under section 100 of the Act and the subsequent procedural steps for cancellation under sections 107, 108, and 109.

The Tribunal found that it was not satisfied that the applicant had provided incorrect answers in the manner described in the notice issued under section 107 of the Act. Consequently, the discretionary power to cancel the applicant's visa did not arise. The Tribunal applied the principles that an incorrect answer is defined in section 100 of the Act, and that the Minister may cancel a visa after deciding there was non-compliance and considering any response, as outlined in sections 108 and 109.

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