1706559 (Refugee)

This matter concerned an application for review of a decision by a delegate of the Minister for Immigration to cancel the applicant’s Subclass 866 (Protection) visa under section 109(1) of the *Migration Act 1958*. The applicant, an Iraqi national and Shia Muslim, had arrived in Australia as an Irregular Maritime Arrival and was granted a protection visa based on his stated fear of persecution from Sunni militias in Iraq. The cancellation decision was predicated on the applicant having provided incorrect information in his visa application and accompanying statement.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Act by providing incorrect answers in his application for a protection visa, and if so, whether the visa should be cancelled. This involved determining if the notice issued under section 107 of the Act sufficiently particularised the alleged non-compliance to allow the applicant to respond, and whether the delegate had reached the necessary state of mind to engage the cancellation power. The Tribunal also considered the principle that a visa cannot be cancelled simply because the visa holder has failed to show cause why it should not be, but rather the decision-maker must be satisfied of a ground for cancellation based on the available material.

The Tribunal found that the applicant had indeed provided incorrect information in his application and statement, and that the decision to grant the protection visa was based on this flawed information. The Tribunal was satisfied that the notice issued under section 107 complied with statutory requirements and sufficiently particularised the non-compliance. Applying the principles that an answer is considered incorrect even if the applicant was unaware of its incorrectness, and that the decision-maker must be satisfied of the non-compliance, the Tribunal concluded that the grounds for cancellation under section 109(1) were met.

The Tribunal affirmed the decision to cancel the applicant’s Subclass 866 (Protection) visa.