1820631 (Refugee)

The applicant, who arrived in Australia in October 2009 as an illegal maritime arrival, applied for a Protection (subclass 866) visa in January 2010. The delegate issued a notice under s.107 of the Act advising of non-compliance with s.101(b) of the Act, leading to the cancellation of the applicant's visa on 21 June 2018. The applicant's initial claims for protection were based on being a stateless Faili Kurd from Iran, facing harassment from authorities, lacking identification, and being unable to live a normal life. The delegate found that the applicant had provided incorrect information in his visa application, which was fundamental to the decision to grant the visa.

The primary legal issue before the court was whether the applicant had failed to provide correct information in his application for a Protection visa, thereby contravening sections 101(a) and 101(b) of the Act, and whether this constituted grounds for cancellation under s.109 of the Act. Specifically, the court had to determine if the applicant was indeed an Iranian citizen, as suggested by later evidence, rather than a stateless Faili Kurd, and if his claims regarding education, military service, marriage status, and past detention were truthful.

The court reasoned that the applicant's later statements and applications, including an application for citizenship in 2014 and an identity interview in 2017, provided significant evidence contradicting his initial claims. Evidence such as his siblings and children being Iranian citizens, his possession of an Iranian birth certificate (shenasnameh), and his completion of compulsory military service in Iran, all pointed towards him being an Iranian citizen at the time of his protection visa application. The court found that Iranian citizenship is passed through the paternal line, making it highly probable that the applicant was an Iranian citizen given his children's citizenship. Furthermore, the court considered the applicant's claims of being stateless and harassed by the Basij to be not credible in light of his subsequent admissions and documentation. The court concluded that the applicant had provided incorrect information to secure his protection visa and that he had acted upon the advice of people smugglers to do so.

The court found that the applicant had not complied with the requirements of the Act by providing incorrect information in his visa application. Consequently, the delegate's decision to cancel the applicant's protection visa under s.109 of the Act was upheld.