1716958 (Refugee)

This matter concerned an application for review of a decision by the delegate of the Minister to cancel the applicant's Subclass 866 (Protection) visa. The applicant, an Iraqi national, had been granted a protection visa in 2011. The delegate issued a Notice of Intention to Consider Cancellation (NOICC) on 28 February 2017, alleging non-compliance with section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect information in his protection visa application. The delegate subsequently cancelled the visa on 12 July 2017.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Act, which requires that no incorrect answers be given in a visa application. This involved determining whether the information provided by the applicant in his 2011 protection visa application was incorrect at the time it was given, or whether circumstances arising after the grant of the visa constituted non-compliance. The Tribunal also considered whether the delegate had properly engaged the cancellation provisions under section 107 and 109 of the Act.

The Tribunal found that the information provided by the applicant in his 2011 protection visa application was not incorrect at the time it was given. The applicant's claims of harassment, threats, and attacks by militias due to his activities selling alcohol in Iraq were accepted as the basis for his protection visa grant. While the applicant had returned to Iraq for an extended period, initially to care for a sick child and later due to his wife's depression and suicide attempt, the Tribunal determined that he was not selling alcohol during this later period and did not fear harm from authorities. Crucially, the Tribunal held that the applicant's subsequent circumstances did not render his original statements incorrect, and therefore, there was no non-compliance as particularised in the NOICC.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's protection visa and substituted a decision not to cancel the visa.