1732771 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the Protection visa of an Iraqi national. The applicant had been granted the visa in 2010 based on his claims of fearing persecution in Iraq due to his Sunni religion and alleged threats from the Badr organisation. In 2017, the Department of Home Affairs issued a Notice of Intention to Consider Cancellation (NOICC) under section 109 of the *Migration Act 1958*, alleging the applicant had provided incorrect answers in his visa application by claiming he feared returning to Iraq, when his subsequent travel history indicated multiple returns to Iraq.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* by providing incorrect answers in his Protection visa application. This section requires a non-citizen to complete their application form in a way that no incorrect answers are given. The Tribunal was required to determine if the applicant's travel history to Iraq contradicted his original claims of fear, thereby establishing non-compliance, and if so, whether the visa should be cancelled.

The Tribunal found that the onus was on the Department to establish the facts grounding the cancellation power. While acknowledging the applicant's travel to Iraq, the Tribunal accepted his explanations for these returns. The first return was to reunite with his family, and subsequent returns were to a different, safer location within Iraq where his family resided under protection. The Tribunal was satisfied that the applicant had provided credible evidence supporting his continued fear of persecution upon returning to his home region in Iraq, and that his family remained at risk. Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.