1730275 (Refugee)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to cancel a protection visa granted to an applicant from Iran. The dispute centred on whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth), specifically concerning the provision of correct information in his visa application and subsequent passenger cards. The delegate's decision to cancel the visa was based on the applicant's ability to re-enter and exit Iran approximately 18 months after being granted a protection visa, which the delegate considered inconsistent with the applicant's claims of persecution due to his conversion to Christianity and alleged presence on an airport watchlist.

The Tribunal was required to determine if the applicant had indeed failed to comply with the relevant provisions of the Act, and if so, whether the visa should be cancelled. This involved assessing whether the delegate had a sufficient basis to form the necessary state of satisfaction that non-compliance had occurred. The Tribunal also had to consider the applicant's explanation for his travel to Iran, which included visiting his ailing mother and utilising arrangements to avoid detection, and whether this explanation adequately addressed the delegate's concerns.

The Tribunal reasoned that while the applicant's return to Iran did raise questions about the veracity of his initial claims, the delegate's decision to issue a notice of intention to cancel (NOICC) was based on an assumption rather than sufficiently substantiated evidence of non-compliance. The Tribunal accepted that the delegate had reached the necessary state of mind to issue the NOICC, as there was some basis for the delegate's concerns regarding the applicant's claims of being on an airport watchlist and facing arrest and execution. However, the Tribunal found that the evidence relied upon by the delegate was not sufficient to establish non-compliance. The Tribunal noted that the obligation rests on the decision-maker to be satisfied of non-compliance, not on the visa holder to prove the absence of it.

The Tribunal ultimately set aside the delegate's decision to cancel the visa.