1711326 (Refugee)

This matter concerned an appeal by a visa holder against a decision to cancel his Subclass 866 (Protection) visa. The dispute arose because the visa holder had provided incorrect information in his original visa application, specifically regarding his claim to be a stateless Faili Kurd. The decision was made by the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the visa holder had failed to comply with section 101 of the *Migration Act 1958* by providing incorrect information in his visa application, and if so, whether the discretion to cancel his visa should be exercised in his favour, considering all relevant circumstances. The Tribunal was required to determine if the incorrect information was central to the grant of the protection visa and to assess the visa holder's current circumstances, including his marriage to an Australian citizen, his role within the family unit, his contributions to the community, and his educational and vocational pursuits.

The Tribunal found that the visa holder's claim of being a stateless Faili Kurd was indeed central to the decision to grant him a protection visa, and that this information was incorrect, as conceded by the applicant. He had provided this incorrect information on the advice of people smugglers, fearing detention and deportation. However, the Tribunal also considered the visa holder's present circumstances, noting his stable marriage to an Australian citizen, his active involvement in the life of his step-daughter, his commitment to his studies and impending apprenticeship, and his overall contribution to the community. The Tribunal concluded that, despite the non-compliance with section 101, the circumstances warranted a decision not to cancel the visa.

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