1801316 (Refugee)

This matter concerned an application to review the cancellation of the applicant's Subclass 866 (Protection) visa. The Minister's delegate had formed the view that the applicant had failed to comply with section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect information in his visa application regarding his place of birth, date of birth, name, and claimed fears of harm as a Hazara Shia in Afghanistan. The applicant had been issued with Notices of Intention to Consider Cancellation (NOICC) and had provided responses, including statutory declarations and written submissions. The Tribunal was required to determine whether the applicant had indeed provided incorrect information and, if so, whether the visa should be cancelled.

The Tribunal was required to determine whether the applicant had provided incorrect answers in his protection visa application concerning his place of birth, date of birth, and name, and whether these inaccuracies constituted non-compliance with section 101(b) of the *Migration Act 1958* (Cth). The Tribunal also considered whether the applicant's claims regarding his fears of persecution as a Hazara Shia in Afghanistan were credible and whether any alleged inaccuracies in relation to these fears were material. The central legal issue was whether the delegate had established the grounds for cancellation under section 109 of the Act, which requires a finding of non-compliance with specific provisions, including section 101.

The Tribunal set aside the decision to cancel the applicant's visa. It found that the applicant was born in Afghanistan and moved to Pakistan as a child, and that his claims regarding his background and fears of persecution were credible and consistent with independent country information. The Tribunal accepted the applicant's explanations for discrepancies in his date of birth and name, attributing them to the difficulties in obtaining accurate documentation in Afghanistan and the practices of his stepfather in Pakistan. Crucially, the Tribunal was not satisfied that the applicant had provided incorrect information regarding his place of birth, date of birth, or name, nor that his claims of fear were not genuine. Consequently, the Tribunal concluded that the grounds for cancellation under section 109 of the Act were not made out, and the discretionary power to cancel the visa did not arise.