1921349 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the grounds that the applicant had provided incorrect information in connection with his earlier application for a Protection visa. The applicant, an Iraqi national, had been granted a Protection visa in 2010 based on a well-founded fear of persecution due to his Sunni Muslim religion and imputed pro-Western political opinion. He was subsequently granted the Subclass 155 visa in 2015.

The legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the *Migration Act 1958* by providing incorrect information in his Protection visa application, as particularised in the notice issued under section 107 of the Act. The Tribunal was required to determine if the information provided by the applicant regarding his claims of persecution, including his family's connection with American forces and his own experiences with non-state actors and politically motivated violence in Iraq, was demonstrably inconsistent with the information provided in his Protection visa application and supporting statements.

The Tribunal found that the information provided by the applicant in his Protection visa application and supporting statements, detailing his family's perceived support for American forces, his brother's role in the Iraqi Police, and the subsequent retribution he and his family faced from Shia-dominated groups including the Al Mahdi army, was not necessarily inconsistent with the basis upon which his Protection visa was granted. The Tribunal was not satisfied that the applicant had failed to comply with section 101(b) of the Act in the manner described in the notice. Consequently, the discretionary power to cancel the visa did not arise.

The Tribunal set aside the delegate's decision to cancel the applicant's Subclass 155 visa and substituted a decision not to cancel the visa.