1719936 (Refugee)

This matter concerned an application by a visa holder to set aside the cancellation of their Subclass 866 (Protection) visa. The dispute arose from the Minister's belief that the applicant had provided incorrect information in their protection visa application, specifically regarding their claim of being a stateless Faili Kurd habitually resident in Iran. The Minister's delegate formed the view that the applicant was an Iranian citizen by descent, based on information suggesting their father was an Iranian citizen and their brother had admitted to being an Iranian citizen.

The 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 their visa application, and if so, whether the visa should be cancelled. The Tribunal was required to determine if the notice issued under section 107 of the Act particularised the alleged non-compliance with sufficient clarity and if the evidence supported the conclusion that the applicant had provided incorrect information about their citizenship status.

The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 and the notice itself complied with statutory requirements, the information provided in the notice did not offer the applicant real insight into the basis of the cancellation consideration. Crucially, the Tribunal was not satisfied that the applicant had failed to comply with section 101(b) in the manner particularised in the notice. Consequently, the discretionary power to cancel the visa under section 109 of the Act did not arise.

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