1802556 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's protection visa. The applicant, who arrived in Australia in 2009, was initially found not to be owed protection obligations but was later granted a protection visa in 2010 after an Independent Merits Reviewer concluded he had a well-founded fear of persecution. The applicant's wife and daughter, who arrived in Australia in 2013, were granted partner visas sponsored by the applicant. In 2017, the Minister's delegate issued a Notice of Intention to Consider Cancellation under section 109 of the *Migration Act 1958* (Cth), alleging the applicant had provided incorrect information by claiming to be stateless when he was an Iranian citizen. The applicant admitted to this non-compliance in his response.

The primary legal issue before the Tribunal was whether to exercise the discretion to cancel the applicant's visa, given his admitted non-compliance with section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect information. The Tribunal was required to consider the applicant's response to the notice and have regard to the prescribed circumstances set out in regulation 2.41 of the *Migration Regulations 1994* (Cth), which include factors such as the correct information, the basis of the visa grant, the circumstances of the non-compliance, the applicant's present circumstances, and any contributions to the Australian community.

The Tribunal found that the applicant was indeed an Iranian national and not stateless, and that his claims of harm due to statelessness were incorrect. However, it accepted that the applicant was of Faili Kurdish descent. The Tribunal noted that the decision to grant the protection visa had been based, in part, on the incorrect assumption of his statelessness and the associated fear of persecution. Despite the admitted non-compliance, the Tribunal considered various factors in favour of the applicant, including his contributions to the Australian community as a carer for a disabled person, the time elapsed since the non-compliance, and the best interests of his Australian-born child. The Tribunal also noted the consequential cancellation of his wife and daughter's partner visas.

The Tribunal concluded that, having regard to all the relevant circumstances, the visa should not be cancelled. The decision under review was set aside, and a decision was substituted to not cancel the applicant's Subclass 866 (Protection) visa.