1710223 (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 been granted a protection visa in 2013. The cancellation decision was based on alleged non-compliance with section 101(b) of the Act, relating to the provision of incorrect answers in his visa application.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Act, as particularised in the notice issued under section 107. This required the Tribunal to consider whether the applicant had provided incorrect answers in his protection visa application and, if so, whether the Minister's decision to cancel the visa was justified. The Tribunal also considered the applicant's submission that the delegate had not properly considered relevant country information when assessing the cancellation decision.

The Tribunal reasoned that while section 100 of the Act states that an answer is incorrect even if the person did not know it was incorrect, the delegate's decision to cancel the visa was flawed. The Tribunal found that the applicant's travel to Iraq to visit a sick child, for which he had obtained approval, was not necessarily inconsistent with his claimed fear of returning to Iraq. Furthermore, the Tribunal was satisfied that the notice issued under section 107 complied with statutory requirements and that the nature of the alleged non-compliance was sufficiently particularised. Applying the principles from *Zhao v MIMA*, the Tribunal noted that a visa cannot be cancelled simply because the visa holder has failed to show cause why it should not be cancelled, and that the decision-maker must be satisfied of the grounds for cancellation based on available material.

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