1711569 (Migration)

This matter concerned an application to review the cancellation of a Subclass 155 (Five Year Resident Return) visa. The applicant had previously been granted a protection visa based on claims of Afghan nationality and citizenship, and that a Pakistani passport he had used to travel to another country was fraudulent. The Department later received evidence suggesting this Pakistani passport was genuine, leading to the belief that the applicant was a Pakistani citizen and had provided incorrect information in his protection visa application.

The legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing incorrect information in his protection visa application, and consequently, whether the Minister's power to cancel his subsequent Resident Return visa under section 109 of the Act had arisen. Specifically, the Tribunal had to determine if the applicant's assertion that the Pakistani passport was fraudulent, and his claim of sole Afghan citizenship, were indeed incorrect answers as contemplated by the Act.

The Tribunal found that the applicant had not failed to comply with the relevant sections of the Act. While the Department had received evidence that the Pakistani passport was genuine, the applicant had consistently maintained that it was provided by a smuggler and that he had never been issued a genuine passport. The Tribunal concluded that the applicant's statements regarding the passport's fraudulent nature and his Afghan citizenship were not incorrect answers in the context of the *Migration Act*, particularly as the applicant had not been issued a genuine Pakistani passport himself. Therefore, the grounds for cancellation under section 109 of the Act were not met.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.