1919013 (Refugee)

This matter concerned an application to review the cancellation of a protection visa. The applicant, who claimed to be a stateless Faili Kurd from Iran, had their visa cancelled by the Department of Immigration and Border Protection on the grounds of providing incorrect information in their visa application, specifically concerning their name, date of birth, and citizenship. The Department's notice of intention to cancel the visa focused on the applicant's alleged Iranian citizenship, based on a reconstructed passport found on the vessel of arrival.

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in their visa application, thereby breaching section 101(b) of the Migration Act 1958, and if so, whether the visa should be cancelled. This required the Tribunal to consider the applicant's claims of statelessness, the evidence of the reconstructed passport, and the broader country information regarding the documentation and treatment of Faili Kurds in Iran, as well as the prevalence of non-genuine passports. The Tribunal also had to determine if the delegate had reached a "real state of satisfaction" that non-compliance had occurred, as required by law.

The Tribunal reasoned that the Department's reliance on the reconstructed passport as conclusive evidence of Iranian citizenship was problematic, particularly given the difficulties stateless individuals face in obtaining official documentation. The Tribunal carefully considered the applicant's detailed account of their family's expulsion from Iraq, their status as "migrants" in Iran with "green cards," their limited access to education and informal work opportunities, and their experiences of harassment, all of which were found to be consistent with claims of statelessness and supported by country information. While acknowledging the existence of the reconstructed passport and the potential for it to indicate Iranian citizenship, the Tribunal found that the applicant's explanation for its acquisition, coupled with the country information on the availability of non-genuine passports and the possibility of corruption in exit procedures, rendered their narrative plausible. Crucially, the Tribunal concluded that it had not reached a "real state of satisfaction" that the applicant had provided incorrect information or that the passport was definitively indicative of citizenship, nor that the applicant was not stateless.

Consequently, the Tribunal found that there was no non-compliance by the applicant as described in the notice issued under section 107 of the Migration Act 1958. As a result, 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 866 (Protection) visa.