2014139 (Refugee)

This matter concerned an application for review of a decision to cancel the applicant's Subclass 866 (Protection) visa. The applicant had provided incorrect information in his protection visa application regarding his citizenship at birth and current citizenship, stating he was not stateless but an Iranian citizen. The Department of Home Affairs had issued a Notice of Intention to Consider Cancellation (NOICC) on 24 September 2015, detailing the alleged non-compliance with section 101 of the Migration Act 1958, specifically concerning the provision of incorrect answers in his visa application.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101 of the Migration Act 1958 by providing incorrect information in his protection visa application, and if so, whether the visa should be cancelled. The Tribunal was required to consider the evidence presented, including the applicant's Iranian passport, country information regarding Iranian citizenship and passport issuance, and the applicant's travel to Iran after being granted a protection visa. The Tribunal also had to consider the circumstances surrounding the applicant's family, including his wife and older child whose protection visas were also cancelled, and his younger child who was an Australian citizen.

The Tribunal found that the applicant had indeed provided incorrect answers in his visa application regarding his citizenship, as evidenced by his possession of an Iranian passport and travel to Iran. The Tribunal was satisfied that the NOICC complied with statutory requirements and that the applicant had been afforded an opportunity to respond. However, after considering all relevant circumstances, including the best interests of the children and the potential for prolonged detention, the Tribunal concluded that the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.