1717810 (Refugee)

This matter concerned an application to review the cancellation of the applicant's protection visa. The applicant, who had been granted a protection visa based on claims of adverse interest to the Al Mahdi Army in Iraq, had subsequently travelled back to Iraq on two occasions. The Department of Home Affairs formed the view that these trips, particularly a three-month visit with his son in 2012 and a one-month visit in 2015, suggested that the applicant was not of adverse interest to the Al Mahdi Army as claimed, and therefore had provided incorrect information in his visa application. Consequently, a notice of intention to cancel his visa was issued.

The primary legal issues before the Tribunal were whether the delegate was entitled to issue the notice of intention to cancel the visa, whether the notice itself was valid, whether the applicant had in fact provided incorrect information as alleged, and if so, how the discretion to cancel the visa should be exercised. The applicant's representative initially challenged the validity of the notices on the grounds of insufficient particulars, but later conceded that the second notice, issued on 11 April 2017, was likely valid. The Tribunal was required to determine if the delegate had reached the necessary state of mind to issue the notice and if the particulars provided were sufficient to comply with section 107 of the Migration Act 1958.

The Tribunal found that the delegate had reached the necessary state of mind to issue the notice, and that the notice of 11 April 2017 was valid. However, the Tribunal was not satisfied that the applicant had provided incorrect information in the manner described in the notice. The applicant had provided explanations for his travel to Iraq, citing compassionate and compelling reasons such as visiting family, including his mother and brother during a medical emergency, and taking his son to see his mother before planned surgery. Evidence was provided to support these explanations, including rental agreements, passport stamps, and hotel receipts. The Tribunal also noted the significant impact that cancellation would have on the applicant's five children, several of whom had significant medical needs or were Australian-born citizens, and whose welfare and future prospects were considered to be better served by remaining in Australia.

Given that the Tribunal was not satisfied of non-compliance, the discretionary power to cancel the visa did not arise. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's protection visa.