2105554 (Refugee)

This matter concerned the review of a decision to cancel the protection visa of the first applicant, an undocumented stateless Faili Kurd. The applicant arrived in Australia in April 2010 with her husband and son, and subsequently applied for a protection visa. A delegate of the Department of Home Affairs issued a notice of intention to consider cancellation of the visa in October 2016, based on documents provided to the Department, and the visa was cancelled in December 2016. The Administrative Appeals Tribunal affirmed the cancellation decision in 2017, and the Federal Circuit Court dismissed an appeal in 2020. The Federal Court subsequently remitted the matter to the Tribunal in 2021, finding that the applicants had not been provided with sufficient particulars of documents to enable a meaningful response. The Tribunal's jurisdiction was limited to the first applicant, as her son's visa cancellation was a consequence of hers under section 140(1) of the Migration Act 1958 (Cth), and no separate decision was made regarding his visa.

The primary legal issue before the Tribunal was whether the decision to cancel the applicant's protection visa should be set aside. This involved determining whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 (Cth) by providing incorrect answers in her protection visa application. Specifically, the delegate considered the applicant's claims of statelessness and her reasons for leaving Iran to be incorrect, based on documents indicating she was an Iranian citizen. The Tribunal was required to consider the particulars of the alleged non-compliance provided in the notice issued under section 107 of the Act and whether the applicant had shown cause why her visa should not be cancelled.

The Tribunal found that while the delegate had reached the necessary state of mind to engage section 107 and the notice issued complied with statutory requirements, the decision to cancel the visa should be set aside. The Tribunal placed significant weight on the applicant's 13-year period of residence in Australia, the strong ties she had established with her community, her active involvement with her grandchild, and the prospect of prolonged immigration detention if the visa were cancelled. These factors, when weighed against the alleged non-compliance, led the Tribunal to conclude that cancellation was not warranted in the circumstances.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the first named applicant’s Subclass 866 (Protection) visa. The Tribunal reiterated that it had no jurisdiction with respect to the review of the second applicant's visa.