2012814 (Migration)

The applicant, who held a Subclass 155 (Five Year Resident Return) visa, sought review of a decision to cancel that visa. The cancellation was based on the ground that the applicant had provided incorrect information in a previous visa application, specifically concerning his adverse profile and voluntary returns to Iraq. The applicant contended that his visa application was completed accurately, that he had complied with all visa conditions, and that his travel to Iraq was motivated by a genuine concern for his family's well-being, particularly his wife's deteriorating health.

The core legal issue before the Tribunal was whether the applicant had failed to comply with the provisions of the *Migration Act 1958* (Cth) that require visa holders to provide correct information in their applications and to notify the Department of any incorrect information or changes in circumstances. This involved determining whether the applicant's previous visa application contained incorrect answers, and if so, whether this non-compliance warranted the cancellation of his Subclass 155 visa. The Tribunal was required to consider the applicant's explanation for his travel to Iraq and the circumstances surrounding the provision of his passport details.

The Tribunal found that the applicant's explanation for his travel to Iraq was credible, driven by a genuine concern for his family and his wife's serious medical conditions. It noted that the applicant had used an Australian travel document for his overseas travel and that his old Iraqi passport, which was stamped by Iraqi authorities, was presented to prove his nationality. The Tribunal accepted that the applicant had not knowingly provided false information in his previous visa application, particularly regarding the possession of his passport at the time of application. The applicant's fear for his safety in Iraq remained, and his visits were to specific locations to see his family, not to engage in activities that would negate his protection claims.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 (Five Year Resident Return) visa.