1919235 (Migration)

The Administrative Appeals Tribunal (Cth) reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The dispute arose from allegations that the applicant had provided incorrect information in his protection visa application concerning his nationality and fear of harm in Iraq. The applicant, a stateless Kuwaiti Bidoon of Sunni Muslim faith, had arrived in Australia in 2011 and was initially granted a protection visa in 2012. The Minister's delegate later issued a notice of intention to cancel this visa, alleging non-compliance with section 101 of the *Migration Act 1958* (Cth) due to incorrect answers regarding his citizenship and fear of harm.

The Tribunal was required to determine whether the applicant had provided incorrect information in his protection visa application regarding his nationality and his fear of harm in Iraq. Specifically, the delegate contended that the applicant was an Iraqi national, not stateless, and that his voluntary returns to Iraq suggested he did not genuinely fear harm there. The Tribunal also had to consider whether, if non-compliance was established, the visa should be cancelled, exercising its discretion under section 109 of the Act.

The Tribunal found that while the applicant had provided incorrect answers regarding his current and other citizenship at questions 20 and 21 of his protection visa application, as he was an Iraqi citizen, it was not satisfied that he had provided incorrect information regarding his statelessness at birth or his fear of harm in Iraq. The Tribunal accepted that the applicant's confusion regarding his status stemmed from his identity as a Bidoon, meaning "without nationality," and his subsequent acquisition of Iraqi citizenship, rather than a deliberate attempt to mislead. The Tribunal also found that the applicant's returns to Iraq were for understandable family reasons and did not negate his genuine fear of harm, particularly given his ethnicity and religion. Despite establishing non-compliance regarding citizenship, the Tribunal exercised its discretion not to cancel the visa, giving significant weight to the applicant's severe physical and mental health issues, his destitution and homelessness, the potential impact on his family, and Australia's non-refoulement obligations.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it.