1712183 (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 s.109(1) of the *Migration Act 1958* (Cth). The applicant, a national of Iraq, had been granted a Protection visa in 2011. The cancellation was based on allegations of non-compliance with s.101(b) of the Act, specifically providing incorrect information in his protection visa application.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with s.101(b) of the Act by providing incorrect information in his protection visa application, and if so, whether the visa should be cancelled. The Tribunal was required to consider the applicant's original claims regarding his fear of harm from Shia militias in Basra due to his Sunni faith, the alleged kidnapping and death of relatives, and the infiltration of authorities by militias. The Tribunal also had to determine if the notice issued under s.107 of the Act sufficiently particularised the alleged non-compliance to allow the applicant to respond.

The Tribunal reasoned that the cancellation power under s.109 of the Act is engaged only if a valid notice under s.107 is issued, detailing the particulars of the alleged non-compliance. The Tribunal found that the notice issued in this case complied with the statutory requirements and sufficiently particularised the alleged non-compliance for the applicant to respond. However, the Tribunal ultimately found that there was no non-compliance by the applicant as described in the s.107 notice. The Tribunal noted that while an answer to a question in a visa application is considered incorrect even if the applicant was unaware of its incorrectness, the decision-maker must be satisfied that non-compliance occurred based on the available material, and a visa cannot be cancelled simply because the applicant failed to show cause why it should not be.

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