1703730 (Refugee)

This matter concerned an application by a visa holder to set aside a decision to cancel their Subclass 866 (Protection) visa. The applicant, who is from Iran and identifies as a non-believer, had expressed fears of harm from the Basij and Sepah. The dispute arose from allegations that the applicant had provided incorrect information in their visa application and to state authorities, which could potentially lead to the cancellation of their visa. The decision was made by Senior Member Denis Dragovic.

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 responses. Specifically, the Tribunal had to determine if the applicant had provided incorrect answers, as defined by section 100 of the Act, and whether this constituted non-compliance with section 101. The Tribunal's assessment was crucial in determining whether the Minister's discretionary power to cancel the visa under section 107 had been validly enlivened.

The Tribunal reasoned that the power to cancel a visa under section 107 of the *Migration Act 1958* arises only if the Minister is satisfied that the visa holder has not complied with certain provisions, including section 101, which mandates that visa applications be completed without incorrect answers. The Tribunal found that it was not satisfied that the applicant had engaged in non-compliance in the manner described in the notice issued under section 107. Consequently, the discretionary power to cancel the applicant's visa did not arise.

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