2201433 (Migration)

This matter concerned the cancellation of a Subclass 155 (Five Year Resident Return) visa held by the applicant. The applicant had previously been granted a protection visa based on claims of being an undocumented, stateless Faili Kurd. However, the Department of Home Affairs formed the view that the applicant was, in fact, an Iranian citizen who was older than initially claimed. This discrepancy arose from incorrect answers provided by the applicant in their protection visa application, which the applicant stated they were advised to give by boat travellers and a people smuggler. The applicant later provided correct information and documents during the process of applying for citizenship. The decision under review was made by the delegate of the Minister, who had exercised the discretion to cancel the applicant's visa.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with section 101 of the Migration Act 1958 (Cth), as alleged in the notice issued under section 107 of the Act, and if so, whether the visa should be cancelled. Section 101 requires non-citizens to provide correct information in their visa applications. The Tribunal also considered the validity of a section 375A Certificate, which restricted the disclosure of certain information to the applicant on the grounds that disclosure would be contrary to the public interest by prejudicing the effectiveness of lawful methods of preventing, detecting, and investigating breaches or evasions of the law.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. While the applicant had provided incorrect information in their protection visa application, the Tribunal considered the elapsed time since that application, the applicant's study, self-employment, and integration into the community. Crucially, the Tribunal accepted the applicant's conversion to Christianity as genuine, despite limited church activity due to work commitments. A late claim by the applicant of being a witness to financial corruption and fraud by their employer was not accepted.

The Tribunal concluded that the decision to cancel the applicant's visa should be set aside.