1729154 (Refugee)

The Administrative Appeals Tribunal considered a decision to cancel the protection visa of an applicant who arrived in Australia as an irregular maritime arrival and claimed to be a stateless Faili Kurd from Iran. The applicant had stated in her protection visa application that she was stateless, of Faili Kurd nationality, and had no documentation. Subsequently, the applicant reported the loss of her Iranian passport to the police in Australia, which formed the basis for the cancellation decision.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in her visa application, thereby failing to comply with section 101(b) of the Migration Act 1958, which requires that no incorrect answers be given in a visa application form. The Tribunal was required to determine if the applicant's claims regarding her nationality and documentation were indeed incorrect, and if so, whether this constituted a ground for visa cancellation under section 109 of the Act.

The Tribunal reasoned that the exercise of the cancellation power under section 109 is conditional on the Minister issuing a valid notice under section 107, detailing the alleged non-compliance. In this instance, the Tribunal found the section 107 notice to be compliant. However, upon considering the country information, the applicant's explanation, and corroborating testimony, the Tribunal concluded that the applicant was indeed a stateless Faili Kurd and had not provided incorrect answers in her visa application. Consequently, the Tribunal found no non-compliance with section 101(b) of the Act.

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