1710637 (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Subclass 155 (Five Year Resident Return) visa. The applicant had arrived in Australia in 2009 and was granted a Subclass 866 (Protection) visa based on his claims of being an Afghan national of Hazara ethnicity, a Shia Muslim, with an imputed political opinion and having worked for a foreign agency. Subsequently, his Subclass 155 visa was granted in 2015. A delegate of the Minister issued a notice of intention to cancel the applicant's protection visa, alleging that the visa had been granted based on incorrect information regarding his identity, including his name, date of birth, previous countries of residence and travel, and migration history. This was discovered through a fingerprint match with an alias used in a previous asylum application in another country.

The court was required to determine whether the applicant had provided incorrect information in his visa applications, and if so, whether the decision to grant the protection visa was based wholly or partly on that incorrect information. Furthermore, the court needed to consider whether the circumstances of the non-compliance warranted the cancellation of the visa, exercising its discretion under section 109 of the Migration Act 1958 (Cth).

The court found that the applicant had indeed provided incorrect information regarding his previous residence and asylum application in another country, and that he had used an alias. However, the court was satisfied that the applicant's protection visa would have been granted even if this information had been disclosed. This was based on the original delegate's assessment of the applicant's credibility, the country information available at the time regarding the deteriorating situation for Hazaras in Afghanistan, and the high grant rate for protection visas for Afghan nationals during that period. The court accepted the applicant's explanation for providing incorrect information, noting his youth, difficult personal circumstances, and fear of being returned to Afghanistan. Consequently, the court determined that the decision to grant the visa was not based on the incorrect information.

The court concluded that while there had been non-compliance with section 101(b) of the Act due to the provision of incorrect information about his travel history and asylum application in another country, the discretionary power to cancel the visa under section 109 should not be exercised. The decision to cancel the applicant's visa was set aside.