2206751 (Refugee)

The Administrative Appeals Tribunal considered the decision to cancel the visa of an applicant who had arrived in Australia without authorisation and was subsequently granted a protection visa. The applicant had initially claimed to be a stateless Faili Kurd minor from Iran, but later admitted to providing incorrect information regarding his name, age, citizenship, and parents' details. The Minister's delegate decided to cancel the applicant's visa under section 109 of the *Migration Act 1958* (Cth) on the grounds of non-compliance with section 101(b) due to the provision of incorrect information. The applicant sought review of this decision.

The Tribunal was required to determine whether the Minister's delegate had validly exercised the power to cancel the visa under section 109 of the Act, and if so, whether the discretion to cancel the visa should be exercised in this case. This involved assessing whether the applicant had failed to comply with the Act by providing incorrect information in his visa application, and then considering the various factors prescribed by regulation 2.41 of the *Migration Regulations 1994* (Cth) that weigh in favour of or against cancellation.

The Tribunal found that the applicant had indeed provided incorrect information in his protection visa application, specifically regarding his Iranian nationality, identity, and age, which meant the visa was granted based wholly on false pretences. This factor weighed heavily in favour of cancellation. The Tribunal also noted that the applicant had maintained these false claims through to a citizenship application, only correcting them after significant departmental investigation. While the Tribunal acknowledged the applicant's claims of being misled by a people smuggler and his personal circumstances in Australia, including his wife, these were not considered sufficient to outweigh the seriousness of the deliberate provision of false information. The Tribunal also considered the potential for indefinite detention if the visa were cancelled, but gave this neutral weight due to the applicant's ability to voluntarily return to Iran.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's visa. The Tribunal concluded that the applicant knowingly provided incorrect information to enhance his chances of obtaining a visa, and that the visa was granted based entirely on this false claim. The Tribunal found that the applicant's continued assertion of incorrect information and the timing of his admission, only after departmental investigation, were significant factors against non-cancellation.