1828364 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 866 (Protection) visa of an applicant who had arrived in Australia as an unauthorised maritime arrival and had their protection claims accepted in 2011. The cancellation was based on allegations of non-compliance with section 101 of the Migration Act 1958, which requires visa applicants to provide correct answers to all questions on their application form.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101 of the Act by providing incorrect answers in their protection visa application, and if so, whether the visa should be cancelled. This involved examining the applicant's original visa application, a statutory declaration detailing their claims for protection, and subsequent travel records and interview statements made by the applicant.

The Tribunal considered the applicant's original claims of fearing harm in Afghanistan due to their ethnicity and faith, the disappearance of their brother, and pressure to fight. It also noted that the applicant had travelled to Afghanistan on two occasions after being granted a protection visa, including to marry a fiancée. The delegate had formed the view that these subsequent events raised doubts about the applicant's claimed fears. However, the Tribunal found that the delegate had reached the necessary state of mind to engage section 107 of the Act and that the notice issued under that section complied with statutory requirements. Despite the delegate's concerns, the Tribunal concluded that, having regard to all relevant circumstances, the visa should not be cancelled.

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