1921531 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel Mr. A's subclass 155 (Five Year Resident Return) visa. Mr. A had arrived in Australia in 2010 as an irregular maritime arrival and was granted a protection visa in 2011 based on claims of fearing for his life in Iraq due to the alleged deaths of his father and brother. However, the delegate found that Mr. A had provided incorrect information in his protection visa application, as his father and brother were alive, and subsequently decided to cancel his current visa under section 107A of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the precondition for the exercise of the discretion to cancel Mr. A's visa had arisen, specifically whether Mr. A had deliberately included incorrect information in his protection visa application contrary to section 101 of the Act. The Tribunal was required to determine the veracity of Mr. A's claims regarding his father and brother's fates and to consider whether his subsequent travel to Iraq was inconsistent with his stated fear for his life.

The Tribunal agreed with the delegate's finding that Mr. A had lied in his protection visa application, deeming his explanations regarding his father's alleged murder and subsequent release from captivity, and his brother's disappearance and release, to be implausible. Furthermore, the Tribunal found Mr. A's extended travel to Iraq, for an aggregate period of approximately seven months, to be inconsistent with the fear for his safety that formed the basis of his protection visa application. Despite these findings, the Tribunal decided to set aside the delegate's decision and substitute a new decision that Mr. A's visa not be cancelled.