2207086 (Refugee)

The applicant, who had been granted a Protection (Class XA) (Subclass 866) visa, sought review of a decision to cancel that visa. The applicant, of Serbian ethnicity, had previously resided in Croatia and was a criminal deportee with intellectual disability and mental health issues, having suffered trauma. The central dispute concerned whether the applicant was stateless and therefore eligible for protection.

The court was required to determine whether the applicant was stateless, and if so, whether the cancellation of the applicant's visa was justified. This involved considering the applicant's former habitual residence in Croatia and the implications of their Serbian ethnicity in that context, particularly in light of their vulnerabilities.

The court found that the applicant was indeed stateless. Applying the principles of international refugee law and Australian migration law, the court reasoned that the cancellation of the visa was not open to the decision-maker, given the applicant's stateless status and the circumstances of their past experiences. The court concluded that the applicant met the criteria for being a refugee.

Consequently, the court remitted the decision to the primary decision-maker for reconsideration according to law.