2000820 (Migration)

The applicant, a holder of a Subclass 155 (Five Year Resident Return) visa, sought review of a decision to cancel that visa. The cancellation was based on the delegate's finding that the applicant had provided incorrect information regarding his nationality in his visa application, specifically by claiming to be stateless when he was, in fact, an Iranian citizen. The delegate also considered discretionary factors and determined that cancellation was appropriate.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with his obligations under section 101(b) of the Migration Act 1958 by providing incorrect information about his nationality. A secondary issue was whether, even if non-compliance was established, the visa should be cancelled, considering the applicant's conversion to Christianity and the potential consequences of his return to Iran, including the prospect of indefinite detention and the best interests of his child.

The Tribunal found that while the applicant had indeed provided incorrect information regarding his nationality, the onus was on the Minister to establish the grounds for cancellation. Applying the principles from *Zhao v MIMA* and considering the gravity of the consequences as outlined in *Briginshaw v Briginshaw*, the Tribunal determined that the evidence did not sufficiently establish that the applicant was an Iranian citizen at the time of his application, nor that he was not stateless. Furthermore, the Tribunal considered the applicant's conversion to Christianity and his stated fear of persecution if returned to Iran, along with the best interests of his child.

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