1914275 (Migration)

This matter concerned an appeal by an applicant against the cancellation of their Subclass 155 (Five Year Resident Return) visa. The dispute arose from the applicant's previous visa applications, where they allegedly provided incorrect and incomplete information regarding their name, date of birth, previous visa applications, and family composition. The Department of Home Affairs had conducted a forensic facial comparison which indicated the applicant was the same person as an individual who had previously applied for a Global Special Humanitarian (subclass 202) visa under a different name.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the Migration Act 1958, specifically section 101(b) concerning the provision of correct information in visa applications, and if so, whether the visa should be cancelled. The Tribunal was required to determine if the notice issued under section 107 of the Act complied with statutory requirements and if the particulars of non-compliance alleged in the notice were established.

The Tribunal found that the section 107 notice was valid and that the applicant had indeed provided incorrect and incomplete information in their previous protection visa application. This included failing to declare a previous humanitarian visa application under another name and providing inaccurate details about their family members. However, the Tribunal also considered various mitigating factors presented by the applicant, including their remorse, mental health challenges, efforts to integrate into the Australian community, and the significant risk of persecution they would face if returned to Afghanistan due to their Hazara Shia ethnicity. The Tribunal noted that the applicant was a minor at the time of the earlier applications and that the visa likely would have been granted even with the correct information.

Ultimately, the Tribunal set aside the decision to cancel the applicant's visa. Despite acknowledging the non-compliance, the Tribunal concluded that, having regard to all the relevant circumstances, including the applicant's personal circumstances and the potential consequences of cancellation, the visa should not be cancelled. The Tribunal substituted a decision not to cancel the applicant's Subclass 155 visa.