2215439 (Refugee)

This matter concerned an application to review the cancellation of the applicant's Subclass 866 (Protection) visa. The applicant had arrived in Australia in December 2010, claiming to be a stateless Iranian Kurd of Shia Muslim Faili ethnicity, born in Tehran, and lacking identity documents. He stated he had been unable to obtain educational or employment documentation in Iran due to his statelessness and ethnicity, leading to illegal work and exploitation. The Tribunal was required to determine whether the applicant had provided incorrect information in his visa application, which could lead to visa cancellation under section 109 of the *Migration Act 1958* (Cth). A related issue involved the Tribunal's consideration of information provided 'in confidence' under section 438 of the Act, which the applicant's representative argued should be disclosed in summary form for procedural fairness.

The Tribunal considered the provisions of sections 101 and 109 of the *Migration Act 1958* (Cth), which relate to the requirement for non-citizens to provide correct information in visa applications and the Minister's power to cancel a visa if such non-compliance is found. The Tribunal was satisfied that the delegate had issued a valid notice under section 107 of the Act, detailing the alleged non-compliance. While the Tribunal acknowledged that the applicant had provided incorrect information, it also had regard to the applicant's two Australian citizen children and the significant negative effect the cancellation would have on their best interests.

The Tribunal concluded that, despite finding non-compliance with the requirement to provide correct information, the cancellation of the applicant's visa was not warranted when all relevant circumstances were considered, particularly the impact on his children. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.