1728183 (Refugee)

The Administrative Appeals Tribunal considered the case of a protection visa holder, the first named applicant, whose visa was cancelled by the Minister. The dispute arose from the applicant's report to the police claiming to have lost his Iranian passport, which was subsequently used by the Department to initiate the visa cancellation process. The applicant had previously arrived in Australia as an irregular maritime arrival and was granted a protection visa on the basis of being an undocumented, stateless Faili Kurd from Iran, asserting he and his family had no documents, rights, or access to education or medical treatment.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth), specifically sections 101(a) and 101(b), which mandate that a non-citizen must complete their visa application form by answering all questions and providing no incorrect answers. This non-compliance was the basis for the Minister's decision to cancel the applicant's visa under section 109 of the Act, following a valid notice issued under section 107. The Tribunal was required to determine if the applicant's report of a lost passport constituted an incorrect answer or a failure to answer truthfully in relation to his visa application, thereby engaging the cancellation power.

The Tribunal reasoned that the applicant's initial protection visa application correctly stated his citizenship as "Stateless Iran" and identified him as a "stateless Faili Kurd." The Tribunal found, after considering country information, the applicant's explanation, and corroborating testimony, that the applicant was indeed a stateless Faili Kurd and not an Iranian citizen. Consequently, the Tribunal concluded that the applicant had not provided incorrect answers in his visa application, nor had he failed to answer questions truthfully, as the report of losing an Iranian passport did not contradict his established status as stateless. Therefore, the Tribunal found no non-compliance with sections 101(a) or 101(b) as particularised in the notice of cancellation.

The Tribunal set aside the decision to cancel the first named applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel it. The Tribunal further stated that it had no jurisdiction with respect to any other applicants.