1708728 (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* (Cth). The applicant, an Iraqi national and Sunni Muslim, had arrived in Australia as an Irregular Maritime Arrival and was permitted to lodge a protection visa application. The cancellation of his visa was based on alleged non-compliance with section 101(b) of the Act, which requires that no incorrect answers be given in a visa application.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect answers in his protection visa application, thereby constituting non-compliance with section 101(b) of the *Migration Act 1958* (Cth). This required the Tribunal to consider the nature of the information provided by the applicant regarding his reasons for leaving Iraq, including alleged persecution due to his religious beliefs and a concerning car accident involving Kuwaiti passengers, and to determine if this information was factually incorrect. The Tribunal also had to assess whether the notice issued by the Minister under section 107 of the Act sufficiently particularised the alleged non-compliance to allow the applicant to respond.

The Tribunal reasoned that the cancellation power under section 109 of the Act is engaged only if the Minister is satisfied of non-compliance, and that the notice issued under section 107 must adequately particularise the alleged non-compliance. The Tribunal found that the notice issued in this case complied with the statutory requirements and that the non-compliance was sufficiently particularised. However, upon reviewing the applicant's statement and the circumstances described, the Tribunal concluded that it did not accept that the applicant had given incorrect answers in his application. Consequently, the Tribunal found that there was no non-compliance by the applicant as described in the section 107 notice, and therefore the discretionary power to cancel the 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.