1906755 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Subclass 155 (Five Year Resident Return) visa. The cancellation was based on alleged non-compliance with section 101 of the Migration Act 1958, which requires visa applicants to provide correct answers to all questions on their application forms. The applicant had previously been granted a protection visa after arriving in Australia and claiming fear of harm in Iraq due to their Shia Muslim faith and business dealings.

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. Specifically, the Tribunal had to determine if the applicant's statements regarding their passport being taken by a smuggler and their reasons for fearing return to Iraq were inaccurate, thereby constituting non-compliance. The Tribunal also considered whether the delegate had properly engaged the cancellation power under section 109 of the Act, which requires a valid notice of non-compliance under section 107.

The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 and the notice issued complied with statutory requirements, it was not satisfied that the applicant had acted in non-compliance as particularised in the notice. The Tribunal noted that the applicant's claims about their passport and fear of harm were made in the context of seeking protection and were supported by the circumstances described in their application. Consequently, the Tribunal concluded that the discretionary power to cancel the visa did not arise.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 visa.