1933638 (Refugee)

This matter concerned an application to review the decision to cancel the applicant's Subclass 866 (Protection) visa. The applicant, who is from Iran, had previously been granted a protection visa. The Minister's delegate formed the belief that the applicant had failed to comply with the Act by providing incorrect information in his protection visa application lodged on 12 October 2012, and subsequently issued a notice of intention to cancel the visa.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with the provisions of the *Migration Act 1958* (Cth) by providing incorrect answers in his visa application, as alleged in the notice of intention to cancel. Specifically, the notice particularised alleged non-compliance regarding the applicant's answers to questions about other names he was known by, and the reasons for seeking protection, his departure from Iran, the harm experienced, and his fears upon return. The Tribunal was required to determine if the information provided by the applicant was indeed incorrect and, if so, whether the Minister's power to cancel the visa under section 109 of the Act had arisen.

The Tribunal considered the evidence presented, including the applicant's previous applications and interviews, which revealed discrepancies in his stated name, date of birth, and the reasons for leaving Iran. However, the Tribunal found that it was not satisfied that the applicant had failed to comply with the Act in the manner described in the notice. Crucially, the Tribunal determined that the notice itself did not adequately particularise the alleged non-compliance, and therefore, the prerequisite for the exercise of the cancellation power under section 109 of the Act was not met. Consequently, the Tribunal set aside the decision under review. The Tribunal substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.