1810049 (Refugee)

The applicant sought review of a decision to cancel their Protection visa. The cancellation was based on the Minister's consideration that the applicant had failed to comply with section 101 of the *Migration Act 1958* by providing incorrect information in their visa application. Specifically, the applicant had claimed they feared returning to Vietnam due to political opinion, religion, and being wanted by authorities for attending a land dispute protest and for leaving the country without documentation. The Minister's delegate concluded that evidence indicated only a few arrests were made at the protest, those arrested were released, and Catholics were not arbitrarily persecuted in Vietnam, leading to the belief that the applicant's claims were fabricated to obtain a visa.

The core legal issue before the Tribunal was whether the applicant had provided incorrect answers in their visa application, thereby contravening section 101 of the *Migration Act 1958*, which requires that all questions be answered and no incorrect answers be given. This determination was crucial as it formed the basis for the Minister's power to cancel the visa under section 109 of the Act. The Tribunal was required to assess the veracity of the applicant's claims regarding their fear of persecution and the factual basis for those fears, in light of the evidence presented.

The Tribunal found that the applicant had not provided incorrect answers as contemplated by section 101 of the Act. While the delegate considered the applicant's claims about being wanted for attending a protest and facing persecution as a Catholic to be unsubstantiated by the evidence, the Tribunal was not satisfied that the applicant had failed to comply with the Act in the manner described in the notice. The Tribunal noted that the evidence indicated that those arrested at the protest in 2008 were released and did not establish that the applicant was specifically sought by authorities or that Catholics faced arbitrary arrest and torture. Consequently, the Tribunal concluded that the discretionary power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 866 (Protection) visa.