1722411 (Refugee)

The Administrative Appeals Tribunal (AAT) considered the case of a protection visa holder whose visa was subject to cancellation. The dispute arose from allegations that the visa was granted based on incorrect information regarding the applicant's identity and statelessness.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing incorrect information in his visa application and subsequent responses to authorities. Specifically, the Tribunal had to determine if the decision to grant the protection visa was based wholly or partly on this incorrect information, and if so, whether the visa should be cancelled, having regard to the prescribed circumstances for exercising this discretion.

The Tribunal found that the applicant had indeed provided incorrect information by claiming to be a stateless Faili Kurd, when he was in fact a citizen of Iran. This incorrect information was central to the decision to grant him a protection visa. However, the Tribunal then considered the discretionary factors relevant to cancellation under section 109 of the Act. It noted the applicant's genuine and ongoing relationship with an Australian citizen fiancé, their intention to marry, and the detrimental impact his removal would have on his fiancé. The Tribunal also considered the time elapsed since the non-compliance and the applicant's continued employment and contribution to the community.

Ultimately, the Tribunal set aside the decision to cancel the applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel it, finding that in light of all the circumstances, cancellation was not warranted.