2215743 (Refugee)

This matter concerned an appeal by an applicant against the cancellation of his Protection visa. The applicant had arrived in Australia in May 2009 and was subsequently granted a Protection visa on 28 July 2009. The Minister later cancelled this visa under section 109 of the *Migration Act 1958* (Cth) due to the applicant providing incorrect information in his visa application regarding his place of birth and nationality. The applicant claimed to be a Hazara Shia Muslim born in Afghanistan, who had worked for the US military and feared persecution from the Taliban. However, his father, who later arrived in Australia, declared in his own visa application that he was a Pakistani citizen born in Pakistan, with Afghan parents, and had held Pakistani passports.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's Protection visa under section 109 of the *Migration Act 1958* (Cth) was valid. This required the Tribunal to determine if the applicant had failed to comply with the provisions of the Act concerning the provision of truthful information in his visa application, and if the Minister had followed the correct procedural steps in issuing the notice of cancellation. A secondary issue involved the consideration of a section 438 certificate issued by the Department, which restricted the disclosure of certain documents on public interest grounds related to investigative methods.

The Tribunal reasoned that while the delegate had reached the necessary state of mind to engage section 107 and the notice of cancellation complied with statutory requirements, the evidence presented did not ultimately support the cancellation. The Tribunal acknowledged the public interest in protecting the Department's investigative methods, as evidenced by the section 438 certificate, and did not disclose the certified information beyond broad terms. However, after considering the applicant's claims and the conflicting information provided by his father, the Tribunal concluded that the decision to cancel the visa should be set aside.

The Tribunal ordered that the decision to cancel the applicant's Protection visa be set aside.