1811152 (Refugee)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 866 (Protection) visa. The applicant had arrived in Australia as an Illegal Maritime Arrival and was granted a Protection visa in May 2012 based on claims of persecution in Iraq by the Bader militia due to his Sunni Muslim faith. The Minister sought to cancel the visa under section 109 of the *Migration Act 1958* (Cth) on the grounds that the applicant had provided incorrect information in his visa application, specifically regarding his religious affiliation and the reasons for leaving Iraq.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* by providing incorrect answers in his protection visa application, and if so, whether the visa should be cancelled. The alleged non-compliance stemmed from the applicant's voluntary return to Iraq for an extended period after being granted the visa, and information provided by his brother suggesting the applicant was Shia Muslim, contrary to his claims of being Sunni Muslim and fearing persecution from Shia militias.

The Tribunal considered the applicant's explanation for his return to Iraq, which included family obligations due to his mother's illness and his wife's distress following the death of their son. The applicant maintained he was a Sunni Muslim and that his brother, who stated he was Shia, had done so out of fear. The Tribunal found that the applicant's voluntary return to Iraq, while potentially risky, was undertaken for compelling family reasons and did not necessarily negate his original claims of persecution. Furthermore, the Tribunal gave weight to the applicant's consistent assertion of his Sunni faith and the evidence supporting his family's Sunni affiliation, including the mosque his father attended and the organisation that issued letters confirming his membership in the Sunni community. The Tribunal concluded that the applicant had not provided incorrect information material to the grant of his protection visa.

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