1816518 (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal (the Tribunal) regarding the cancellation of the applicant's Subclass 155 (Five Year Resident Return) visa. The visa was cancelled by the Department of Home Affairs on the grounds that the applicant had provided incorrect information in his applications, specifically concerning his name, nationality, and educational background. The applicant had previously applied for Australian citizenship and a protection visa, and the cancellation notice alleged non-compliance with section 101(b) of the Migration Act 1958, which requires that no incorrect answers be given in visa applications.

The Tribunal was required to determine whether the applicant had provided incorrect information in his applications as particularised in the notice issued under section 107 of the Migration Act. Specifically, the Tribunal had to consider whether the applicant was indeed an Afghan national and not a Pakistani citizen, as alleged by the Department, and whether his claims regarding his education were accurate. The Tribunal also had to assess whether the evidence presented, including extensive country information regarding Pakistani citizenship law and the experiences of Afghan refugees in Pakistan, supported the Department's findings of non-compliance.

The Tribunal found that the applicant was an Afghan national and had not been a citizen of Pakistan. It considered detailed country information which indicated that Afghan refugees, particularly those arriving after 1962, had no legal process to acquire Pakistani citizenship. The Tribunal accepted the applicant's assertion that his Pakistani National Identity Card was obtained fraudulently, a practice acknowledged as prevalent in Pakistan. Furthermore, the Tribunal found that the applicant's claims regarding his education were not demonstrably incorrect based on the evidence before it. Consequently, the Tribunal concluded that it was not satisfied that the applicant had provided incorrect information in the manner described in the section 107 notice.

As the Tribunal was not satisfied that there had been non-compliance by the applicant as particularised in the notice, the discretionary power to cancel the visa did not arise. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 155 visa.