1923588 (Refugee)

The Tribunal considered a decision to cancel the protection visa of an applicant from Iran. The cancellation was based on the ground that the applicant had provided incorrect information in their visa application, specifically regarding their citizenship and claimed statelessness.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Migration Act 1958, which requires that no incorrect answers be given in a visa application. This question arose in the context of the Minister's power to cancel a visa under section 109 of the Act, following a valid notice issued under section 107. The Tribunal also had to consider whether, having found non-compliance, it was appropriate to exercise the discretion to cancel the visa, taking into account the applicant's circumstances and Australia's non-refoulement obligations.

The Tribunal found that while the applicant had stated they were stateless in their visa application, this was not an incorrect answer given their background as a Faili Kurd from Iran, whose citizenship status was complex and not clearly established. The Tribunal noted that the applicant had provided a detailed account of their fears of persecution in Iran due to their ethnicity, religious beliefs as a convert to Christianity, and perceived anti-regime opinions. The Tribunal concluded that the applicant's claims regarding their identity and fears were credible and that the information provided in the visa application, despite the initial appearance of an incorrect answer regarding statelessness, did not warrant the cancellation of their protection visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel the visa.