1808852 (Refugee)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 866 (Protection) visa. The applicant, who arrived in Australia as an irregular maritime arrival in April 2012, had been granted a protection visa on 14 August 2013, following an initial refusal by a departmental delegate and a subsequent remittal for reconsideration by the Refugee Review Tribunal (RRT). The cancellation decision was based on the applicant allegedly providing incorrect information in his protection visa application, specifically concerning his claimed fear of harm in Iraq due to his Sunni Muslim faith and threats from Shia militias. The alleged incorrect information stemmed from the applicant's voluntary return to Iraq for approximately 88 days between January and April 2015, during which he stayed with his family.

The primary legal issues before the Tribunal were whether the Notice of Intention to Consider Cancellation (NOICC) was validly issued and, if so, whether the applicant had indeed failed to comply with section 101 of the Migration Act 1958 by providing incorrect information in his visa application. The Tribunal was required to determine if the applicant's return to Iraq raised sufficient doubt about the veracity of his claims to warrant a finding of non-compliance.

The Tribunal reasoned that the obligation on the decision-maker is to be positively satisfied that non-compliance has occurred. While the applicant's return to Iraq for a significant period, during which he stayed with family and kept a low profile, reasonably raised questions about the accuracy of his initial claims of fearing harm, the Tribunal was not satisfied that this constituted non-compliance as described in the NOICC. The Tribunal noted that the applicant's protection visa had been granted based on his claims of fear, and his subsequent return did not, in itself, negate those original claims to the extent of establishing non-compliance under section 101.

Consequently, the Tribunal found that there was no non-compliance by the applicant in the manner described in the s.107 notice. As the Tribunal was not satisfied that non-compliance had occurred, the discretionary power to cancel the visa did not arise. The Tribunal therefore set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.