2118180 (Refugee)

This matter concerned the review of decisions to cancel the protection visas of a husband and wife, and the wife's resident return visa. The dispute arose from the husband's initial protection visa application, which was granted based on a finding of statelessness. The Department subsequently sought to cancel the visas on the grounds that the grant was based on incorrect information, specifically regarding the husband's claimed statelessness and the applicants' family relationships. The applicants also faced issues with citizenship applications being refused on character grounds, including the husband's conviction and suspended sentence.

The court was required to determine whether the visas should be cancelled, considering the extent of the non-compliance with the *Migration Act 1958* (Cth), particularly sections 101 and 109. This involved assessing whether the initial grant of protection visas was based wholly or partly on incorrect information, the circumstances in which the non-compliance occurred, the present circumstances of the visa holders, their subsequent behaviour concerning their immigration obligations, any other instances of non-compliance known to the Minister, and the time elapsed since the non-compliance. The court also had to consider the best interests of the children and the principle of non-refoulement.

The court found that the husband's claim of statelessness was central to the grant of the protection visas, and this claim was later found to be incorrect. The court also noted that the applicants had provided incomplete and incorrect answers regarding their family relationships and had engaged in conduct that weighed in favour of cancellation, such as exaggerating risks and being evasive about family members. However, the court also took into account the applicants' settled life in Australia, their community connections, the husband's work ethic, the reunification of their family, and the passage of time since the non-compliance. Ultimately, the court found that while there were factors weighing in favour of cancellation, there was a slight balance in favour of non-cancellation, particularly when considering the best interests of the children.

Consequently, the court set aside the decisions under review. The husband's protection visa cancellation was not upheld, and the wife's resident return visa was not cancelled.