1703474 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's protection visa under section 109 of the *Migration Act 1958* (Cth). The applicant, born in Baghdad, was granted a protection visa in 2012 based on a well-founded fear of persecution due to his political opinion, ethnicity, and membership in a particular social group, stemming from threats and incidents related to his employment with a company servicing the US military in Iraq. The cancellation was initiated due to the applicant's subsequent return trips to Iraq, which the Minister considered to be inconsistent with his original claims of fear.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101 of the *Migration Act*, which requires that all questions on a visa application form be answered and that no incorrect answers be given. Specifically, the Tribunal had to determine if the applicant's return to Iraq for limited purposes, such as visiting his ill mother and marrying his fiancé, constituted a material falsehood in his original protection visa application, thereby providing grounds for cancellation under section 109. The Tribunal also considered the scope of its review powers and the onus of proof in such matters.

The Tribunal reasoned that the applicant's return to Iraq for brief, specific purposes did not, in itself, demonstrate that his original claims of fear were false. The evidence presented, including a doctor's report confirming his mother's stroke and hospitalisation, supported his explanation for the first visit. Similarly, his marriage provided a plausible reason for the second visit. The Tribunal found no evidence to contradict the applicant's assertions that he maintained a low profile during these visits and that his circumstances had changed since he was employed by the company servicing the US military. Crucially, the Tribunal held that there was no onus on the applicant to satisfy it that his original statements were correct; rather, the onus was on the Minister to establish non-compliance.

Consequently, the Tribunal was not satisfied that the applicant had failed to comply with section 101 of the *Migration Act* in the manner described in the notice of intention to consider cancellation. As such, the discretionary power to cancel the visa under section 109 did not arise. The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.