1711046 (Refugee)

This matter concerned an appeal by a protection visa holder against the cancellation of his visa. The Minister had sought to cancel the visa under section 109 of the Migration Act 1958 (Cth) on the grounds that the visa holder had provided incorrect information in his protection visa application, specifically concerning his claimed fear of harm from Iranian authorities due to his brother-in-law's alleged anti-regime activities. The visa holder had subsequently returned to Iran for a period of 10 months without apparent issue and had engaged with the Iranian Embassy, which the delegate considered inconsistent with his claimed fear. The Tribunal was required to determine whether the visa holder had indeed failed to comply with section 101(b) of the Act by providing incorrect information in his visa application, and if so, whether the visa should be cancelled.

The Tribunal found that while the delegate had issued a valid notice of intention to consider cancellation under section 107 of the Act, it was not satisfied that the applicant had provided incorrect information in his original visa application. The Tribunal considered the applicant's mental health condition, specifically schizophrenia, and its potential impact on his ability to make rational, risk-adverse decisions. Although oral evidence from the applicant's doctor was not taken, the Tribunal was satisfied with the medical reports provided. Ultimately, the Tribunal concluded that the requisite level of satisfaction for non-compliance had not been attained.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa. The Tribunal's reasoning was that because it was not satisfied that there had been non-compliance as described in the notice issued under section 107, the discretionary power to cancel the visa did not arise.