1702934 (Refugee)

This matter concerned an application by a refugee visa holder to set aside a decision to cancel their Subclass 866 (Protection) visa. The applicant, who is of Hazara ethnicity from Afghanistan, had previously been granted a protection visa. The Minister had initiated cancellation proceedings based on allegations of incorrect information provided by the applicant, specifically concerning their ethnicity and fear of harm by extremists. The case was heard by Member Alison Murphy.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) concerning the provision of correct information in their visa application and subsequent dealings with the Department. This involved determining if the information provided by the applicant was "incorrect" as defined by the Act, and if so, whether the Minister's decision to cancel the visa was validly made under section 109 of the Act.

The Tribunal found that there was no non-compliance by the applicant in the manner alleged by the Minister. Consequently, the discretionary power to cancel the applicant's visa did not arise. The Tribunal reasoned that the applicant's ethnicity and fear of harm were not established as incorrect. Therefore, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.