1913224 (Refugee)

This matter concerned an application to review the cancellation of a Protection (subclass 866) visa granted to an individual who had claimed to be a stateless Faili Kurd from Iran. The applicant had arrived in Australia as an illegal maritime arrival and was subsequently found to be owed protection under the Refugees Convention. The visa was granted based on the applicant's presented identity and claims of persecution in Iran. The Minister later sought to cancel the visa on the grounds that the applicant had provided incorrect information in their visa application, specifically regarding their citizenship status.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* (the Act) by providing incorrect answers in their visa application, and if so, whether the visa should be cancelled. Section 101(b) requires a non-citizen to complete their application form in a way that no incorrect answers are given. The notice of intention to cancel the visa particularised the alleged non-compliance as a failure to comply with section 101(b) of the Act.

The Tribunal found that the applicant had indeed provided incorrect information in their visa application, as they had claimed to be stateless when they held an Iranian citizenship evidenced by a *shenasnameh* issued shortly after birth. This constituted non-compliance with section 101(b) of the Act. However, the Tribunal then considered the exercise of discretion regarding cancellation. Having regard to all relevant circumstances, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Protection (subclass 866) visa.