1816865 (Refugee)

The applicant, a holder of a Subclass 866 (Protection) visa, sought review of a decision to cancel that visa. The Department of Home Affairs had issued a notice of intention to consider cancellation, alleging non-compliance with section 101(b) of the *Migration Act 1958* (Cth). This was based on the applicant's original protection visa application, where he claimed a fear of being killed in Iraq due to his Shiite religion and threats from Al Qaeda and other militant groups. The Department's concern arose from the applicant's subsequent travel to Iraq on five occasions for a total of approximately nine months without apparent harm, suggesting his original claims might have been incorrect.

The legal issue before the Tribunal was whether the applicant had provided incorrect answers in his protection visa application, thereby failing to comply with section 101(b) of the Act, and if so, whether his visa should be cancelled. Section 101(b) requires that no incorrect answers be given or provided in a visa application. Section 100 defines an "incorrect answer" as one that is incorrect, regardless of whether the applicant knew it was incorrect. Section 107 outlines the process for issuing a notice of intention to cancel a visa for non-compliance, and section 108 requires consideration of any response provided by the visa holder.

The Tribunal considered the applicant's explanation for his return visits to Iraq, which included attending to his critically ill father, obtaining medical treatment for him, finalising inheritance matters, and arranging family visas. The applicant provided a statutory declaration detailing these compelling reasons and asserting he maintained a low profile and continued to fear harm during these trips. The Tribunal accepted these explanations as demonstrating that the applicant did not provide incorrect answers in his original application. Consequently, the Tribunal found that there was no non-compliance with section 101(b) of the Act.

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