2208399 (Refugee)

The Administrative Appeals Tribunal reviewed a decision by the Department of Immigration and Border Protection to cancel the applicant's protection visa. The applicant, an Iranian citizen, had initially been granted a protection visa in 2010 based on claims of being a stateless Faili Kurd from Iraq, unable to return to either Iraq or Iran. However, subsequent applications for family visas provided documents, including Iranian passports and birth certificates for his children, which led the Department to reassess the applicant's initial claims. This reassessment resulted in a Notice of Intention to Consider Cancellation of the visa, alleging the applicant had provided incorrect information in his protection visa application.

The Tribunal was required to determine whether the applicant had failed to comply with the requirements of his visa application as alleged in the Notice of Intention to Consider Cancellation, and if so, whether the visa should ultimately be cancelled. The specific non-compliance alleged related to the applicant's declarations regarding his children's statelessness, his own date and place of birth, and his citizenship at birth, all of which were contradicted by documents provided in support of later visa applications.

The Tribunal found that the applicant had indeed provided incorrect information in his protection visa application, specifically concerning his and his children's citizenship and place of birth, as detailed in the s 107 notice. However, despite this finding of non-compliance, the Tribunal concluded that the visa should not be cancelled. This decision was made after considering all relevant circumstances, including the applicant's current serious mental and physical health conditions, and the fact that the Department had not detained him. The Tribunal therefore set aside the decision to cancel the visa and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.