1724140 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 866 (Protection) visa of the applicant. The dispute arose from allegations that the applicant had provided incorrect answers in his visa application and had failed to disclose relevant information, leading to the cancellation of his visa by the Department.

The Tribunal was required to determine whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) as particularised in the notice issued under section 107 of the Act. Specifically, the Tribunal had to assess whether the applicant had provided incorrect answers regarding his identity, citizenship, reasons for leaving Iran, and fears of returning to Iran, and whether these alleged inaccuracies constituted non-compliance warranting visa cancellation.

The Tribunal found that a significant portion of the Department's decision was based on an identity interview conducted in English without an interpreter. The Tribunal expressed grave concerns about the applicant's ability to understand the questions and the potential for his answers to be misunderstood, given the lack of evidence regarding his English language proficiency and the fact that he and his wife required an interpreter at the Tribunal hearing. The Tribunal concluded that errors in understanding between the applicant and the identity officer were a real possibility, leading to potentially erroneous adverse inferences by the Department. Consequently, the Tribunal was not satisfied that the applicant had engaged in non-compliance as described in the section 107 notice.

As the Tribunal was not satisfied that there was non-compliance, the discretionary power to cancel the applicant's visa did not arise. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.