1908336 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa of the applicant, who had arrived in Australia as an undocumented maritime arrival in 2010. The applicant claimed to be a stateless Bedouin from Kuwait, who had fled to Iraq and subsequently obtained an Iraqi passport through bribery. He later applied for and was granted a protection visa, which subsequently ceased. The delegate's decision to cancel the applicant's Subclass 155 visa was based on findings that incorrect information had been provided in relation to his identity and circumstances.

The Tribunal was required to determine whether the cancellation of the applicant's visa under section 109 of the Migration Act 1958 (Cth) was justified, considering the applicant's claims of a well-founded fear of harm if returned to Iraq due to his Sunni religion, Kuwaiti accent, and past cooperation with Western military forces. A key legal issue was the applicability of the High Court's decision in *Minister for Immigration and Border Protection v Makasa* [2021] HCA 1 to the cancellation power under section 109, as distinct from the character cancellation power under section 501(2) considered in *Makasa*.

The Tribunal reasoned that while the applicant had provided incorrect information regarding his nationality and the circumstances of obtaining his Iraqi passport, the cumulative effect of his claims gave rise to a real chance of harm should he be returned to Iraq. The Tribunal found that the applicant continued to be a refugee to whom Australia owed protection obligations. Applying this assessment, the Tribunal concluded that cancelling the visa would result in a breach of Australia's obligations under the Refugees Convention. The Tribunal distinguished the *Makasa* case, noting that its reasoning related specifically to the character cancellation power under section 501(2) and did not directly apply to other cancellation powers such as section 109, due to differences in their structure and operation.

Consequently, the Tribunal set aside the decision under review.