1700787 (Refugee)

This matter concerned an application to review the cancellation of a Subclass 866 (Protection) visa granted to an applicant from Nigeria. The delegate of the Minister had determined that the applicant breached section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect answers in their protection visa application and a subsequent Form 80. The alleged incorrect answers related to the applicant's claims of homosexuality, including the reasons for seeking relocation to Australia, potential harm in Nigeria, and past relationships.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect answers in their visa application, thereby triggering the Minister's power to cancel the visa under section 109 of the Act. Specifically, the Tribunal had to consider whether the applicant's subsequent declaration of having a female partner in a Form 80 contradicted their earlier claims of homosexuality made in their protection visa application and associated statutory declaration.

The Tribunal reasoned that the delegate's grounds for cancellation were based on a misunderstanding of the applicant's claims. The delegate considered the applicant's statement of having a female partner in a later application to be an admission that their earlier claims of homosexuality were false. However, the Tribunal found that the applicant's protection visa application and statutory declaration provided strong evidence of their homosexuality, detailing their experiences growing up gay in Nigeria and their relationships. The Tribunal concluded that the applicant's subsequent declaration of having a female partner did not necessarily negate their homosexuality, nor did it demonstrate that the original answers regarding their sexuality were incorrect. Therefore, the Tribunal found no non-compliance with section 101(b) of the Act as particularised in the notice of intention to cancel.

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