1718073 (Refugee)

This matter concerned an application by a Kurdish Iranian national for review of a decision to cancel his Subclass 866 (Protection) visa. The applicant had initially claimed to be a stateless Faili Kurd and provided incorrect information in his visa application, which was central to his claims for protection. The Minister's delegate formed the view that the visa holder had failed to comply with section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect information in his protection visa application. A Notice of Intention to Consider Cancellation (NOICC) was issued, and the applicant responded, explaining the circumstances under which the incorrect information was provided.

The legal issues before the Tribunal were whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect information in his visa application, and if so, whether the visa should be cancelled. The Tribunal was required to consider the particulars of the alleged non-compliance as set out in the NOICC and the applicant's response. This involved assessing whether the decision to grant the visa was based, wholly or partly, on incorrect information, the circumstances in which the non-compliance occurred, and the present circumstances of the visa holder.

The Tribunal found that the applicant had indeed provided incorrect information in his visa application, specifically regarding his status as a stateless Faili Kurd, which was a significant factor in the grant of his protection visa. The applicant explained that he and his wife were advised by people smugglers to claim this status to avoid deportation, and they continued to maintain this claim due to fear and to protect relatives who had made similar claims. Despite this non-compliance, the Tribunal considered the applicant's circumstances, including his nine years of residence in Australia, his employment, his efforts to integrate into Australian society, and his improved English skills. Crucially, the Tribunal also considered the best interests of his children, one of whom is an Australian citizen, and the status of girls in Iran.

Ultimately, the Tribunal concluded that, having regard to all the relevant circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 866 (Protection) visa. The Tribunal noted it had no jurisdiction with respect to other applicants.