1912725 (Migration)

This matter concerned an appeal by an applicant against the cancellation of his Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the ground that the applicant had provided incorrect information in his earlier application for a protection visa. The applicant had arrived in Australia in December 2009 and was granted a protection visa in February 2010, followed by the resident return visa in January 2015. The Department initiated cancellation proceedings after a facial image comparison suggested the applicant had previously applied for a Global Humanitarian visa in 2008 under a different identity.

The legal issues before the Tribunal were whether the ground for cancellation was made out, specifically whether the applicant had provided incorrect information in his protection visa application, and if so, whether the visa should be cancelled. The incorrect information identified related to the applicant's previous applications for refugee status, his identity details, the presence of a close relative in Australia, and the accuracy of the information provided in his visa application. The Tribunal was required to determine if the grant of the protection visa was based, wholly or partly, on this incorrect information or a bogus document, and to consider the circumstances in which the non-compliance occurred and the present circumstances of the visa holder.

The Tribunal found that the applicant had indeed provided incorrect information in his protection visa application, specifically regarding his family composition and the presence of his brother in Australia, which he had failed to disclose on the advice of people smugglers. However, the Tribunal concluded that the decision to grant the protection visa was not based, wholly or partly, on this incorrect information. The grant was based on the applicant's ethnicity as a Hazara Shia, and the Tribunal was satisfied that he would have been granted the visa even if the correct family information had been provided. The Tribunal also noted that the incorrect information was provided under circumstances where the applicant was advised to withhold it to avoid complications.

Consequently, the Tribunal determined that while there was non-compliance with section 101(b) of the Act, the discretionary power to cancel the visa under section 109(1) should not be exercised. The Tribunal set aside the decision to cancel the applicant's visa, finding that the grant of the protection visa was not predicated on the incorrect information provided.