1724128 (Refugee)

This matter concerned an application by a visa holder to review a decision to cancel his protection visa. The applicant, who claimed to be a stateless Faili Kurd, had been granted a protection visa based on his assertion of statelessness and ethnicity. The Minister's delegate had formed the view that the visa was granted wholly or partly on the basis of incorrect information, specifically regarding the applicant's identity and citizenship. The Administrative Appeals Tribunal was required to determine whether the visa holder had failed to comply with a condition of his visa, as contemplated by section 101(b) of the *Migration Act 1958* (Cth), and if so, whether the visa should be cancelled under section 109 of the Act.

The primary legal issue before the Tribunal was whether the decision to grant the applicant a protection visa was based, in whole or in part, on incorrect information. The Tribunal considered the applicant's claim to be a stateless Faili Kurd, which was central to the original visa grant. The applicant had acknowledged providing incorrect information about his identity in his visa application, stating this was due to a fear of deportation under his true identity. However, the Tribunal did not accept this explanation and found that the applicant was, in fact, an Iranian citizen and not stateless as claimed.

The Tribunal reasoned that the applicant had provided incorrect information regarding his identity and citizenship in his visa application, constituting non-compliance with paragraph 101(b) of the *Migration Act*. The Tribunal found that the original decision to grant the protection visa was based wholly, or at least in large part, on this incorrect information. While the cancellation of a visa under section 109 is discretionary, the Tribunal considered the prescribed circumstances under regulation 2.41 of the *Migration Regulations 1994* and other relevant government policy. The Tribunal noted the applicant's lack of response to the Notice of Intention to Cancel Visa (NOICC) and his explanation that he was advised by his lawyer to wait. Despite acknowledging some positive aspects of the applicant's conduct in Australia, such as his efforts to obtain employment and limited volunteer work, the Tribunal concluded that the non-compliance was significant.

The Tribunal affirmed the decision to cancel the applicant's protection visa.