1731357 (Refugee)

This matter concerned an application to review the cancellation of the applicant's Subclass 866 (Protection) visa. The Minister's delegate had cancelled the visa on the grounds that the applicant had provided incorrect information in his protection visa application and attached statutory declaration, specifically regarding his claimed statelessness, the statelessness of his spouse and children, and his adverse interest to an Iraqi militia group. The applicant's representative had provided extensive documentation in response to the notice of non-compliance, including medical reports and information concerning the applicant's mental health and family circumstances.

The Tribunal was required to determine whether the applicant had failed to comply with section 101 of the *Migration Act 1958* (Cth) by providing incorrect answers in his protection application, and if so, whether the visa should be cancelled. The Tribunal also considered whether the notice issued under section 107 of the Act complied with statutory requirements, which it found to be the case.

The Tribunal found that while section 100 of the Act states that an answer is incorrect even if the person did not know it was incorrect, it also considered the applicant's circumstances, including significant mental health issues and a genuine and fundamental misunderstanding of Iraqi documentation. Despite the applicant's distress during the hearing, the Tribunal found him to be a credible witness. Having regard to all the relevant circumstances, the Tribunal concluded that the visa should not be cancelled.

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