2215442 (Refugee)

This matter concerned an application to review a decision to cancel the applicant's Subclass 866 (Protection) visa. The applicant had arrived in Australia claiming to be stateless, of Kurdish Faili ethnicity, and unable to obtain documentation from Iran due to her background. She asserted that she would face persecution, harassment, and arbitrary detention if returned to Iran. The Department of Home Affairs had issued a certificate under s 438 of the *Migration Act 1958* (Cth) preventing the disclosure of certain information to the applicant, though a summary was provided.

The primary legal issue before the Tribunal was whether the applicant's visa should be cancelled, notwithstanding a finding of non-compliance with visa application requirements. This involved considering the effect of a s 438 certificate on procedural fairness and determining whether the cancellation power under s 109 of the Act should be exercised, having regard to all relevant circumstances, including the best interests of the applicant's two Australian citizen children.

The Tribunal found that while there had been non-compliance by the applicant in the way described in the notice issued under s 107 of the Act, the decision to cancel the visa should be set aside. The Tribunal reasoned that the non-compliance, when considered in light of all relevant circumstances, did not warrant cancellation. Crucially, the Tribunal had regard to the significant negative effect that cancellation would have on the best interests of the applicant's two Australian citizen children.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.