1911476 (Migration)

This matter concerned an application to review a decision to cancel the applicant's Subclass (155) (Five Year Resident Return) visa. The applicant had provided incorrect information regarding his ethnicity and statelessness in his visa application. The Tribunal was required to determine whether the decision to grant the visa was based wholly or partly on incorrect information or a bogus document, and to consider the circumstances of the non-compliance and the present circumstances of the visa holder in deciding whether to set aside the cancellation.

The Tribunal found that the grant of the visa was based wholly on incorrect information concerning the applicant's ethnicity and statelessness, and therefore placed considerable weight in favour of the visa remaining cancelled. However, the Tribunal also considered the circumstances in which the non-compliance occurred, noting the political turmoil and economic downturn in Iran at the time of the applicant's departure, although it did not accept the applicant's claims of being stateless, ethnically Kurdish, or belonging to a persecuted religious minority. Some weight was also given to the applicant's stated reasons for lodging the application, which included Iran's economic deterioration.

Furthermore, the Tribunal considered the applicant's present circumstances, including his nearly nine years of residence in Australia, his partner and infant child who are Australian citizens, and his two step-children who are also Australian citizens. The applicant also claimed to suffer from depression, exacerbated by his brother's suicide. While the medical evidence regarding his mental health was not strong, the Tribunal accepted he had some genuine symptoms, placing some weight on this deterioration in favour of the visa not remaining cancelled. Ultimately, the Tribunal found that the decision to cancel the visa was made only marginally in favour of the applicant.

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.