1806126 (Refugee)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 866 (Protection) visa. The applicant, who had been granted the visa in 2011, was alleged to have failed to comply with section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect information in his visa application. The Department issued a Notice of Intention to Consider Cancellation (NOICC) on 8 November 2017, to which the applicant responded in writing on 1 December 2017. The Tribunal was satisfied that the NOICC sufficiently informed the applicant of the basis for the proposed cancellation and provided him with an opportunity to respond.

The central legal issue before the Tribunal was whether the applicant had indeed failed to comply with section 101(b) of the Act, as particularised in the NOICC, and if so, whether the visa should be cancelled. The non-compliance alleged was that the applicant had provided incorrect information regarding his identity and nationality in his original protection visa application. Specifically, the applicant had claimed to be a stateless Faili Kurd facing persecution in Iran, which was central to his claims for protection.

The Tribunal found that the decision to grant the protection visa was based, in large part, on the incorrect information provided by the applicant. The applicant, through his representative and later in person, admitted to providing incorrect information about his name, date of birth, family relationships, and nationality. He explained that he and his wife were advised by people smugglers to destroy their identity documents and claim to be Faili Kurds to avoid deportation and to ensure their family's ability to remain in Australia. The Tribunal acknowledged the applicant's subsequent circumstances, including his residence in Australia for approximately nine years, his family life, employment, and plans to purchase a business. Despite finding that non-compliance occurred as described in the notice, the Tribunal concluded that, having regard to all the relevant circumstances, 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.