1716579 (Refugee)

The Administrative Appeals Tribunal considered a dispute between a visa holder and the Minister regarding the cancellation of a protection visa. The Minister's delegate had decided to cancel the visa based on the applicant's alleged failure to provide correct information in his visa application, specifically concerning his claim of being a stateless Faili Kurd. The applicant had claimed to be habitually resident in Iran, as were his parents and siblings.

The central legal issue before the Tribunal was 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. The alleged non-compliance stemmed from the applicant's interactions with police in Australia, where he reported his Iranian passport lost or stolen. The Department interpreted these interactions as evidence that the applicant held an Iranian passport and was therefore an Iranian citizen, contradicting his claim of statelessness.

The Tribunal reasoned that for a visa cancellation under section 109 of the Act to arise, there must first be a valid notice issued under section 107, detailing particulars of the alleged non-compliance. While the Tribunal found the section 107 notice to be valid and that the delegate had the necessary state of mind to engage the provision, it was not satisfied that the applicant's actions constituted non-compliance as particularised. The police records indicated the applicant reported his passport lost and sought a replacement, but they did not definitively establish that he possessed a current Iranian passport or was an Iranian citizen. The applicant's inability to articulate details about the passport or who the replacement form was for, coupled with the lack of passport number details in the police reports, meant the evidence did not conclusively demonstrate the applicant provided incorrect answers regarding his statelessness.

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