1811165 (Refugee)

This matter concerned a Protection visa holder whose visa was subject to cancellation by the Minister. The dispute arose from allegations that the visa holder had provided incorrect information in their visa application, specifically regarding their religion and reasons for fearing return to Iraq. The visa holder disputed these allegations and sought to have the cancellation decision set aside. The case was heard by the Tribunal.

The primary legal issue before the Tribunal was whether the visa holder had failed to comply with section 101(b) of the *Migration Act 1958* (Cth) by providing incorrect answers in their visa application. This non-compliance was particularised in a notice issued by the Minister, alleging that the visa holder had falsely claimed to be a Sunni Muslim fearing persecution from Shia militias, when in fact they were Shia and had voluntarily returned to Iraq for an extended period without incident. The Tribunal was required to determine if the information provided in the visa application was indeed incorrect and, if so, whether the visa should be cancelled.

The Tribunal considered the visa holder's original application, statutory declaration, and subsequent statements made upon return from Iraq. It noted that the visa holder had initially claimed to be a Sunni Muslim fearing persecution by Shia militias, citing specific incidents of harm to their family and themselves. However, upon returning from a five-month visit to Iraq, the visa holder informed departmental officers that they were Shia. The Tribunal also considered the visa holder's explanation for this discrepancy, including fear of authorities and the impact of trauma and grief. Crucially, the Tribunal found that the visa holder's explanation for their return to Iraq, to visit a sick father who subsequently passed away, and their explanation for stating they were Shia at the airport, were credible. The Tribunal concluded that the visa holder had not provided incorrect information in the manner alleged by the Minister, and therefore, the grounds for cancellation under section 109 of the Act 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.