2209695 (Migration)

The Administrative Appeals Tribunal considered a migration matter involving the applicant, who held a Subclass 155 (Five Year Resident Return) visa. The dispute arose from the Minister's intention to cancel this visa based on allegations that the applicant had provided incorrect information in his application for a protection visa. Specifically, the incorrect answers related to his name, date of birth, citizenship status (stated as stateless Bidoon, alleged to be Iraqi citizen), and his claims for protection from Kuwait.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the Migration Act 1958, which mandates that no incorrect answers be given in a visa application. This involved assessing whether the information provided by the applicant regarding his identity and claims for protection was indeed incorrect, as alleged by the Minister, or if the applicant had provided truthful and accurate information to the best of his knowledge and ability. The Tribunal also considered the validity of the Notice of Intention to Consider Cancellation (NOICC) issued to the applicant.

The Tribunal's reasoning focused on the evidence presented by both parties. While the Minister relied on information from Iraqi authorities suggesting the applicant was an Iraqi citizen, the Tribunal noted the applicant's consistent written and oral evidence, including statutory declarations and testimony from a cousin, as well as documentation such as his wife's partner visa application, his own Titre de Voyage with an Iraqi visa label, and birth certificates for himself and his child. The Tribunal also considered country information regarding the prevalence of bribery and fraudulent documents in Iraq. Crucially, the Tribunal found that the applicant had provided detailed and consistent information, and that the information obtained from Iraqi authorities, while suggesting Iraqi citizenship, was not sufficiently conclusive to satisfy the Tribunal that the applicant had provided incorrect answers in his protection visa application. The Tribunal was not satisfied that there had been non-compliance as described in the NOICC.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 visa.