2102430 (Refugee)

This matter concerned an application for review of a delegate of the Minister for Immigration's decision to cancel the applicant's Subclass 866 (Protection) visa under s 109(1) of the Migration Act 1958 (Cth). The cancellation was based on the applicant's alleged failure to comply with s 101 of the Act, specifically by providing incorrect information in his visa application regarding his name, citizenship, and right to reside in other countries. The applicant claimed to be an Afghan citizen of Hazara ethnicity, seeking protection due to persecution fears in Afghanistan and Pakistan.

The Tribunal was required to determine whether the delegate followed the correct process for visa cancellation and, if so, whether the applicant had indeed provided incorrect information in his visa application as particularised in the s 107 notice. The specific allegations of non-compliance related to the applicant not disclosing an alias, stating his family members were Afghan citizens when information suggested they were Pakistani citizens, and answering questions about his current citizenship and right to reside in other countries in a manner considered incorrect by the delegate.

The Tribunal found that the delegate had the necessary state of mind to issue the s 107 notice and that the notice itself complied with statutory requirements. However, upon considering the applicant's visa application and supporting documents, including his statement that he had only ever possessed a false Pakistani passport given by a smuggler and that his family still lived in Quetta, Pakistan, where they did not have a legal right to reside, the Tribunal concluded that the information provided was not incorrect. The Tribunal noted that s 100 of the Act states an answer is incorrect even if the person did not know it was incorrect, but in this instance, the applicant's statements about his circumstances and fears were consistent with his claims for protection.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel the visa.