1711178 (Refugee)

This matter concerned an application to review the cancellation of a Subclass 866 (Protection) visa granted to a citizen of Uzbekistan. The applicant had claimed an adverse profile and a fear of harm upon return to Uzbekistan, but had subsequently voluntarily returned to Uzbekistan on two occasions, engaged with authorities, and obtained a new passport without experiencing significant issues or harm. The Minister’s delegate had cancelled the visa on the grounds that the applicant had provided incorrect information in his visa application, specifically in relation to questions concerning his fear of authorities, potential imprisonment or death, and the protection he could expect from the state.

The legal issues before the Tribunal were whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect answers in his visa application, and if so, whether the visa should be cancelled. The Tribunal was required to consider the particulars of non-compliance as stated in the notice issued under section 107 of the Act and determine if the applicant's subsequent actions in Uzbekistan contradicted his claims of fear and adverse profile.

The Tribunal reasoned that section 109 of the Act permits the Minister to cancel a visa if the holder has failed to comply with certain provisions, including section 101, which requires that no incorrect answers be given in a visa application. The Tribunal found that the notice issued under section 107 complied with statutory requirements and that the applicant had indeed provided incorrect information in his application regarding his fear of Uzbek authorities and his claimed adverse profile. This conclusion was based on the applicant's voluntary return to Uzbekistan, his engagement with authorities without adverse consequences, and his ability to obtain a new passport, all of which indicated that he did not hold the adverse profile he had claimed and was not at risk of harm as asserted.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel his Subclass 866 (Protection) visa. The Tribunal noted that a legal issue regarding the delegation to the original decision-maker had caused a lengthy delay, resulting in distress to the applicant and his wife.