1835225 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 866 (Protection) visa of an applicant from Iran. The delegate of the Minister had formed the view that the applicant had failed to comply with section 101(b) of the *Migration Act 1958* by providing incorrect answers in his protection visa application. The alleged non-compliance related to his reasons for seeking protection in Australia, his fear of harm from the Iranian government and society, and the basis for that fear, specifically concerning apostasy and the lack of protection from authorities.

The legal issues before the Tribunal were whether the applicant had provided incorrect answers as particularised in the Notice of Intention to Consider Cancellation (NOICC), and if so, whether the visa should be cancelled. The NOICC specified that the applicant's answers to questions 41, 44, 45, and 46 of his protection visa application form were considered incorrect, based on his voluntary return to Iran on at least three occasions and his engagement with Iranian authorities to obtain a new passport without apparent issue. The Tribunal was required to determine if the applicant's subsequent conduct, including travel to Iran and renewal of his passport, demonstrated that his original claims were false, thereby constituting non-compliance with section 101(b).

The Tribunal reasoned that the critical question was not whether the applicant had breached section 101, but whether there was non-compliance in the specific way described in the NOICC. It accepted the applicant's explanation that his previous travels to third countries to meet his family were to minimise costs and facilitate entry, not to seek protection from Iranian authorities. Regarding his single acknowledged visit to Iran in 2016 to see his ill mother, the Tribunal found this to be for a compassionate and compelling reason. It accepted his account of renewing his Iranian passport in Australia and his discreet entry and exit from Iran, finding these actions consistent with his claimed fear of the Iranian authorities. Crucially, the Tribunal noted that the NOICC did not particularise certain potentially contradictory information, such as the applicant's admission of initially being a Muslim and later converting to Christianity, or his claims about an official relative monitoring him. Therefore, the Tribunal concluded that the applicant had not engaged in non-compliance in the manner described in the NOICC.

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