1728983 (Refugee)

This matter concerned an application by a protection visa holder to set aside a decision to cancel his visa. The dispute arose from allegations that the applicant had provided incorrect answers in his protection visa application, specifically concerning his name, which had been transliterated differently by various individuals. The applicant had also returned to Iraq on four occasions for a total of 11 months after being granted his visa, citing urgent family matters and travel to a relative safe area. The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 by providing incorrect answers in his visa application, and if so, whether the visa should be cancelled.

The Tribunal considered the provisions of section 101(b) of the Migration Act 1958, which requires a non-citizen to complete their visa application such that no incorrect answers are given. It noted that an answer is considered incorrect even if the applicant was unaware it was incorrect. The Tribunal found that while the applicant's name had been transliterated differently, his passport and other identity documents bore the same Arabic name. The Tribunal also considered the applicant's voluntary returns to Iraq, but concluded that these returns, while suggestive, did not definitively displace the applicant's claims of fear of persecution. The Tribunal acknowledged the applicant's family's integration into life in Australia, including their business and schooling, and the potential Australian citizenship of a younger child, highlighting the principle of family unity and the hardship of returning to Iraq.

Ultimately, the Tribunal was not satisfied that the applicant had provided incorrect answers in the manner described in the notice issued under section 107 of the Act. Consequently, the Tribunal concluded that 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.