ZUBAIDI (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Subclass (155) (Five Year Resident Return) visa. The applicant, Zubaidi, had arrived in Australia seeking asylum and was subsequently granted a protection visa. The cancellation of his visa was based on allegations of non-compliance with sections 101 and 107A of the Migration Act 1958 (Cth), specifically that he had provided incorrect information in his application for the protection visa. The Administrative Appeals Tribunal (AAT) was required to determine whether there had been such non-compliance and, if so, whether the visa should be cancelled.

The primary legal issues before the Tribunal were whether the notice issued under section 107 of the Act complied with statutory requirements and whether the applicant had failed to comply with section 101 (requiring visa applications to be correct) and section 107A (which allows for cancellation of a current visa based on non-compliance in relation to a previous visa). The Tribunal had to consider the applicant's responses to questions in his protection visa application, particularly those concerning his reasons for leaving Iran and his fears of harm if returned, in light of his earlier claims and the information provided in his statutory declaration.

The Tribunal reasoned that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with the statutory requirements. It found that the applicant had provided incorrect information in his protection visa application regarding his claims of an adverse profile in Iran and fear of harm, which were the basis for the grant of his visa. The Tribunal considered several factors in favour of cancellation, including the fact that the visa was granted wholly or partly on incorrect information, the seriousness of providing incorrect information, the applicant's continued assertion of having provided correct information despite the Tribunal's findings, and the time elapsed since the non-compliance. While acknowledging the applicant's partner's ill health in Iran, the Tribunal gave this limited weight in favour of the applicant.

Ultimately, the Tribunal concluded that there had been non-compliance by the applicant as described in the notice issued under section 107 of the Act. Having regard to all the relevant circumstances, the Tribunal affirmed the decision to cancel the applicant's Subclass (155) visa.