1814873 (Migration)

This matter concerned an application by a visa holder for review of a decision to cancel their Subclass 155 (Five Year Resident Return) visa. The cancellation was based on allegations that the applicant had provided incorrect information in a previous application for a protection visa, contrary to section 101 of the Migration Act 1958 (Cth). The applicant contended that the notice of cancellation was invalid and that, in any event, the visa should not have been cancelled.

The primary legal issues before the Tribunal were whether the notice of cancellation issued under section 107 of the Act complied with its statutory requirements, and if so, whether the applicant had indeed failed to comply with section 101 of the Act by providing incorrect information in their protection visa application. The Tribunal was also required to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant factors including the applicant's contributions to the Australian community and the current situation for Hazaras in Afghanistan.

The Tribunal found that the notice issued under section 107 complied with the statutory requirements, and that the delegate had reached the necessary state of mind to engage section 107. The Tribunal then examined the specific instances of alleged incorrect information regarding the applicant's brother's death, his periods of residence in Afghanistan and Pakistan, and his educational history. While discrepancies were identified between the protection visa application and information provided in a subsequent citizenship application and interview, the Tribunal ultimately determined that the decision to cancel the visa should be set aside.

The Tribunal concluded that the applicant's wife and children remained at risk in Quetta, which weighed in favour of not cancelling the visa. Furthermore, the applicant was described as a highly educated individual with skills that would enable him to gain employment if removed from Australia, a factor that was considered in the overall assessment.