1621222 (Refugee)

This matter concerned an appeal to the Tribunal by an Afghan citizen whose Subclass 866 (Protection) visa was cancelled by a delegate of the Minister for Immigration. The cancellation followed a notice issued under section 107 of the *Migration Act 1958* alleging non-compliance with paragraph 101(b) of the Act due to the provision of incorrect information in the applicant's protection visa application. The applicant had claimed his father was killed by the Taliban and that his wife and children had died while travelling from Pakistan to Kabul. The Department later became aware that his father was alive and in Australia, and the applicant had sponsored his wife and children for a partner visa.

The Tribunal was required to determine two issues: first, whether the applicant had indeed failed to comply with the Act by providing incorrect information as alleged in the section 107 notice; and second, if non-compliance was established, whether the Tribunal should exercise its discretion to cancel the visa. The applicant's original protection visa application had asserted he was a Hazara Shia Muslim from Afghanistan, and he had provided details of his father's alleged killing by the Taliban and the death of his wife and children.

In its reasoning, the Tribunal accepted that the applicant had provided incorrect information regarding his father's death and the circumstances of his wife and children's deaths. However, the Tribunal found that the applicant genuinely believed his wife and children had been killed at the time of his application and had acted on bad advice regarding his father's death. Crucially, the Tribunal concluded that the applicant would have been granted a protection visa even without the incorrect information. The Tribunal gave significant weight to the applicant's mental state at the time, his subsequent contributions to the Australian community, and the fact that his removal to Afghanistan would breach Australia's international obligations due to a real risk of persecution or harm. The Tribunal also considered that cancellation would likely lead to indefinite detention in Australia.

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