1914537 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Refugee and Humanitarian (Class XB) visa, Subclass 200, held by the applicant. The dispute arose from allegations that the applicant provided incorrect information regarding his name, date of birth, and citizenship, as well as the citizenship and details of his parents and siblings, in his visa application. The applicant, a stateless Faili Kurd from Iran, claimed past discrimination and hardship, and a fear of future harm. The Tribunal also considered the consequential cancellation of the applicant's wife's and children's visas, over which it had no jurisdiction to review, and the best interests of the children.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the requirements of the Act, specifically concerning the provision of correct information in his visa application, as particularised in the notice of intention to cancel. If non-compliance was established, the Tribunal then had to determine whether the visa should be cancelled. The Tribunal was required to assess whether the decision-maker was satisfied that the grounds for cancellation existed, based on the available material, rather than on the applicant's failure to disprove the allegations.

The Tribunal found that the applicant's responses to the notice of intention to cancel had changed significantly and that some of the information initially provided was conceded to be incorrect. However, the Tribunal noted that the applicant's explanation for the initial inaccuracies related to his statelessness, lack of documentation, and discrimination faced as a Faili Kurd in Iran, which complicated Iranian citizenship laws. The Tribunal applied the principle from *Zhao v MIMA* that a decision-maker must be satisfied of the grounds for cancellation based on available material, and a visa cannot be cancelled simply because the holder failed to show cause why it should not be. The Tribunal concluded that the decision-maker had not been sufficiently satisfied of the non-compliance alleged in the notice.

Consequently, the Tribunal set aside the decision under review.