1823470 (Refugee)

The applicant sought review of a decision to cancel their Subclass 866 (Protection) visa. The Minister's delegate had formed the view that the applicant had failed to comply with the *Migration Act 1958* (Cth) by providing incorrect information in their protection visa application lodged on 4 April 2011. This alleged non-compliance related to questions concerning other names the applicant had been known by, their date of birth, their right to reside in other countries, and whether they had applied to migrate to or for refugee status in any other country.

The primary legal issue before the Tribunal was whether the applicant had indeed failed to comply with the requirements of the *Migration Act 1958* by providing incorrect information in their visa application, and if so, whether the visa should be cancelled. The Tribunal was required to consider the evidence, including facial image comparison reports and departmental evidence, to determine the accuracy of the applicant's responses and the validity of the cancellation decision.

The Tribunal found that while the applicant had provided incorrect information in their visa application, as evidenced by a facial image comparison report and departmental records indicating they were also known as [Ms B] with a different date of birth and had resided in [Country 1] as a permanent resident, the cancellation of the visa was not warranted. The Tribunal noted that section 109(1) of the Act allows the Minister to cancel a visa after deciding there was non-compliance and considering any response, having regard to prescribed circumstances. In this instance, despite the non-compliance, the Tribunal concluded that, having regard to all relevant circumstances, the visa should not be cancelled.

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