1711147 (Refugee)

This matter concerned the affirmation of a decision to cancel the applicant’s Subclass 866 (Protection) visa. The applicant had been granted the visa based on claims of persecution in Iraq due to assisting Australian and US forces, and a lack of legal status and protection from authorities there. The Minister’s delegate initiated cancellation proceedings under section 109 of the *Migration Act 1958* (Cth), alleging the applicant had provided incorrect information in their visa application, specifically in response to questions about who might harm them if they returned to Iraq and whether authorities could protect them. This allegation was based on evidence of the applicant making three return visits to Iraq, totalling approximately one year, without apparent incident.

The legal issues before the Tribunal were whether the notice of intention to cancel the visa complied with the requirements of section 107 of the Act, and if not, whether the cancellation decision was valid. The applicant argued that the delegate had not properly formed the requisite state of mind to issue the notice and that the notice failed to particularise the alleged non-compliance as required by section 107(1)(a). The Tribunal was also required to consider whether the applicant had indeed failed to comply with section 101(b) of the Act by providing incorrect answers, given their voluntary returns to Iraq.

The Tribunal found that the notice issued by the Minister’s delegate did comply with the requirements of section 107 of the Act. It determined that the applicant had provided incorrect answers to questions 46 and 48 of their protection visa application, contrary to section 101(b) of the Act, as their subsequent voluntary returns to Iraq for significant periods suggested they did not hold the claimed adverse political profile. The Tribunal reasoned that section 100 of the Act states that an answer is incorrect even if the person did not know it was incorrect. Having found non-compliance, and considering all relevant circumstances, the Tribunal concluded that the visa cancellation was appropriate. The Tribunal affirmed the decision to cancel the applicant’s visa.