1730857 (Refugee)

This matter concerned an application to review the cancellation of a protection visa. The applicant, who arrived in Australia as an irregular maritime arrival, claimed to be a stateless Faili Kurd from Iran and was granted a protection visa. Subsequently, the applicant reported her Iranian passport as lost, which formed the basis for the Department to initiate cancellation proceedings. The Tribunal was constituted by Senior Members Brenton Illingworth and Denis Dragovic.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with sections 101(a) and 101(b) of the Migration Act 1958 (Cth), which require visa applicants to answer all questions on their application form and provide no incorrect answers. This question arose from the applicant's report of a lost Iranian passport, which the Department considered to be inconsistent with her initial claim of being stateless and having no documents. The Tribunal also considered whether the notice issued under section 107 of the Act, detailing the alleged non-compliance, was valid and complied with statutory requirements.

The Tribunal reasoned that the exercise of the cancellation power under section 109 of the Act is contingent on the Minister issuing a valid notice under section 107, which must provide particulars of the alleged non-compliance. In this case, the Tribunal was satisfied that the section 107 notice was valid and complied with the statutory requirements. 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 therefore had not provided incorrect information in her visa application. Consequently, the Tribunal found that there had been no non-compliance as particularised in the notice.

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