2009229 (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, identified as Faili Kurd and claiming statelessness, had previously been granted a Protection (Class XA) Subclass 866 visa on 27 March 2012. The cancellation was initiated under section 109 of the Migration Act 1958 (Cth), which permits the Minister to cancel a visa if the visa holder has failed to comply with certain provisions, including providing correct information in visa applications and not providing bogus documents. The core dispute revolved around whether the applicant had provided incorrect information or a bogus document in relation to their previous visa application, thereby triggering the cancellation power.

The primary legal issues before the Tribunal were whether the delegate had reached the requisite state of mind to issue a notice under section 107 of the Act, whether the notice itself complied with statutory requirements, and crucially, whether there had been non-compliance as particularised in the section 107 notice. Specifically, the notice alleged that the applicant had not complied with section 101(b) of the Act, meaning the decision to grant the visa was based wholly or partly on incorrect information or a bogus document. The Tribunal was required to determine if the applicant's previous claims about their identity, citizenship, and reasons for fearing return to Iran were indeed incorrect, and if so, whether this warranted the cancellation of their current visa.

The Tribunal affirmed the decision to cancel the applicant's visa. It found that the delegate had properly formed the necessary state of mind to issue the section 107 notice and that the notice itself met the statutory requirements. The Tribunal concluded that the applicant's protection visa would not have been granted had the true circumstances been known, finding that the applicant had acted upon the advice of people smugglers to provide false information about their identity and claims to enhance their chances of obtaining a visa. Despite acknowledging the applicant's submissions regarding discrimination experienced as a Kurd in Iran and the medical conditions of his parents, the Tribunal was satisfied that the applicant, as an adult, had made a conscious decision to mislead the authorities, and this constituted non-compliance under section 109 of the Act.