1732350 (Refugee)

This matter concerned an application for review of a decision to cancel the Subclass 866 (Protection) visa of the applicant, Mr A. Mr A had arrived in Australia in 2010 with his wife and son, claiming to be a stateless Faili Kurd from Iran. They were granted protection visas in 2011 and subsequently had two children in Australia who are Australian citizens. The delegate cancelled Mr A's visa under section 109(1) of the *Migration Act 1958* on the basis that he had provided incorrect information in his visa application, specifically by claiming statelessness when the delegate concluded he was an Iranian citizen. The central issue before the Tribunal was whether a ground for cancellation was established and, if so, whether the visa should be cancelled.

The Tribunal was required to determine if Mr A had failed to comply with section 101 of the *Migration Act 1958*, which mandates that a non-citizen must complete their visa application truthfully and without providing incorrect information. This involved assessing whether Mr A was indeed an Iranian citizen at the time of his application, contrary to his claim of statelessness. If a ground for cancellation was found, the Tribunal then had to consider whether to exercise its discretion to cancel the visa, taking into account various factors including the non-refoulement obligation, the best interests of the Australian citizen children, and the applicant's personal circumstances.

The Tribunal adopted the reasoning from a related matter concerning the applicant's wife. It considered evidence regarding the applicant's alleged provision of incorrect information, including the circumstances of a police report concerning lost items, which the applicant disputed. The Tribunal also examined inconsistencies in the applicant's evidence concerning his arrest and treatment in Iran, and his wife's explanation for these discrepancies. Ultimately, the Tribunal found that while the applicant's eligibility for the visa was significantly affected by the incorrect information provided, and he had not made a contribution to the community, several factors weighed heavily against cancellation. These included the applicant's mental illness requiring treatment not readily available in Iran, and crucially, the presence of three children, two of whom are Australian citizens, one with a medical condition.

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