1730529 (Refugee)

This matter concerned an application by a visa holder for review of a decision to cancel his protection visa. The applicant had been granted a protection visa based on his fear of harm from his father-in-law, who allegedly disapproved of his relationship with his wife. The Department of Home Affairs subsequently issued a notice under s 107 of the Migration Act 1958 (Cth) alleging non-compliance with s 101(b) of the Act, on the basis that the visa was granted wholly or partly on incorrect information. The Administrative Appeals Tribunal (AAT) was required to determine whether the applicant had failed to comply with s 101(b) and, if so, whether the visa should be cancelled.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in his visa application and during the review process, leading to the grant of his protection visa. Specifically, the Tribunal had to consider whether the applicant's claim of fearing harm from his father-in-law was central to the original visa grant and if this claim was based on false information. The Tribunal also had to assess the circumstances of the non-compliance, the applicant's subsequent behaviour, and the prescribed circumstances for cancellation under Regulation 2.41 of the Migration Regulations 1994 (Cth).

The Tribunal found that the applicant had provided incorrect information to the first Tribunal hearing when he stated that his wife's family was unaware of their marriage or had not attended it. This constituted a failure to comply with s 101(b) of the Act, as any information provided to the Tribunal on review is taken as an answer to a question in a visa application. The Tribunal determined that the original decision to grant the protection visa was based, at least in large part, on the incorrect information regarding the applicant's fear of his father-in-law. While the applicant and his wife faced some financial hardship upon return to Malaysia, the Tribunal was not satisfied that they would be without family support or unable to find accommodation, given their previous experience living and working there. The Tribunal concluded that the visa should be cancelled.