1713060 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an applicant who claimed to be an Afghani Shia Hazara fearing persecution in Pakistan. The dispute arose from the applicant providing incomplete and incorrect information regarding his name, date and place of birth, and citizenship in his visa application, which was later corrected during a citizenship identity interview.

The Tribunal was required to determine whether the applicant had failed to comply with sections 101(a) and 101(b) of the Migration Act 1958, as particularised in the notice issued under section 107 of the Act. Specifically, the Tribunal had to consider if the applicant had failed to answer all questions on his visa application and if he had provided incorrect answers, thereby engaging the Minister's power to cancel his visa under section 109 of the Act.

The Tribunal found that the applicant had indeed provided non-compliant answers as described in the section 107 notice. However, it then considered whether the visa should be cancelled, having regard to various factors. These included the applicant's establishment in the Australian community, the mandatory legal consequences of cancellation such as potential indefinite detention, and international obligations, particularly the risk of refoulement. The Tribunal noted that despite being a Pakistani citizen, the applicant, as a Hazara Shia, faced a high risk of violence in Quetta, Pakistan, according to country information. The Tribunal also considered the hardship to the applicant's Australian citizen wife and children.

Ultimately, the Tribunal set aside the decision to cancel the applicant's protection visa and substituted a decision not to cancel it, concluding that in light of all the relevant circumstances, cancellation was not warranted.