2217005 (Refugee)

This matter concerned a review of a decision by the Department to cancel the applicant's Subclass 866 (Protection) visa. The applicant had provided information regarding their statelessness, Iraqi citizenship, and fears of harm in their protection visa application. The Department's cancellation decision was based on alleged non-compliance with section 101(b) of the Migration Act 1958, specifically concerning potentially incorrect answers relating to the applicant's citizenship and fears of harm.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with section 101(b) of the Act, as particularised in the Notice of Intention to Consider Cancellation (NOICC), and if so, whether the applicant's visa should be cancelled. The NOICC identified potential incorrect answers regarding the applicant's current citizenship, whether they held citizenship or nationality of any other country, and whether they had the right to enter or reside in any country other than their country of nationality or former habitual residence. The applicant had stated they were a stateless Bidoon, born in Kuwait and later removed to Iraq.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 of the Act and that the notice issued complied with the statutory requirements. However, the Tribunal was not satisfied that the applicant had provided incorrect answers in the manner described in the NOICC. Consequently, the Tribunal concluded that the discretionary power to cancel the applicant's visa did not arise.

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