1728177 (Refugee)

This matter concerned an application by a visa holder to set aside a decision to cancel their Subclass 866 (Protection) visa. The applicant, a Faili Kurd and Shi'a Muslim, had been granted the visa based on claims of persecution in Iraq due to their ethnicity and religion. The Department of Immigration and Border Protection subsequently issued a notice under s 107 of the *Migration Act 1958* (Cth) alleging non-compliance with s 101(b) of the Act, specifically that incorrect information had been provided in the visa application. The Tribunal was required to determine whether the applicant had indeed failed to comply with s 101(b) by providing incorrect answers in their application.

The central legal issue was whether the applicant's voluntary travel to Iraq for an extended period after the grant of their protection visa demonstrated that the information provided in their application regarding their fear of persecution was incorrect, thereby constituting non-compliance with s 101(b) of the *Migration Act 1958* (Cth). This section requires that visa applications be completed such that no incorrect answers are given. The Tribunal considered whether the applicant's stated fears of harm from Iraqi nationals, Sunni Muslims, Sunni extremist groups, and the Iraqi government were contradicted by their subsequent travel to Iraq, where they entered and departed through official channels using an Australian travel document without apparent incident.

The Tribunal found that the applicant's voluntary travel to Iraq did not, in itself, demonstrate that the information provided in their protection visa application was incorrect. The Tribunal reasoned that the applicant's subsequent travel did not negate the past experiences of persecution and fear that formed the basis of their protection claim. The fact that the applicant was able to travel to and from Iraq without experiencing harm during that specific period did not necessarily mean that they would not face persecution if compelled to return permanently. Therefore, the Tribunal concluded that there was no non-compliance by the applicant in the manner described in the s 107 notice.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 866 (Protection) visa.