1821052 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an Iraqi national. The applicant, a Shia Muslim from Maysan Governate, had been granted a protection visa in December 2011 based on fears of persecution due to an imputed political opinion, stemming from his alleged involvement in protecting an Iraqi building from terrorist attack and the arrest of some members of a terrorist group. The visa was cancelled in July 2018.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Migration Act 1958, which requires visa applicants to provide no incorrect answers in their application forms. This was the specific ground for the cancellation notice issued to the applicant. The Tribunal was required to determine if the information provided by the applicant in his protection visa application was indeed incorrect, and if so, whether the visa should be cancelled.

The Tribunal considered the applicant's claims regarding his past role and the information provided in his statutory declaration. It also examined the Department's Notice of Intention to Consider Cancellation (NOICC), which detailed the alleged non-compliance with section 101(b) of the Act. However, the Tribunal ultimately found that it was not satisfied that there had been non-compliance by the applicant in the manner described in the notice. Consequently, the discretionary power to cancel the applicant's 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.