2101379 (Refugee)

The Administrative Appeals Tribunal reviewed a decision concerning the cancellation of a protection visa held by the applicant. The dispute arose from concerns that the applicant had provided incorrect information in his visa application, specifically regarding his identity and citizenship status, which could engage section 109 of the *Migration Act 1958* (Cth). The Tribunal was tasked with determining whether the applicant had indeed failed to comply with the requirements of his visa application and, if so, whether his visa should be cancelled.

The central legal issue before the Tribunal was whether the applicant had provided incorrect answers in his protection visa application, thereby contravening section 101(b) of the *Migration Act 1958* (Cth). This section mandates that non-citizens must complete their visa applications without providing any incorrect answers. The Tribunal also considered the particulars of the Notice of Intention to Consider Cancellation (NOICC) issued to the applicant, which alleged non-compliance with section 101(b) by providing incorrect information regarding his identity, citizenship, family composition, and reasons for leaving Iran.

The Tribunal found that while the delegate had properly engaged section 107 of the Act and issued a compliant notice, the applicant's circumstances warranted setting aside the cancellation decision. The Tribunal acknowledged the applicant's claims of being a stateless Faili Kurd expelled from Iraq to Iran, facing difficulties in Iran due to his lack of documentation, and experiencing detention and physical harm. Crucially, the Tribunal considered the significant hardship the applicant would face if deported, including the extreme difficulty in obtaining Iraqi identity documents and establishing his nationality, his lack of ties to Iraq, and the potential for indefinite detention and separation from his Australian citizen family. These factors weighed heavily against cancellation.

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.