1914841 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa of a male applicant. The applicant had arrived in Australia in 2010 and was subsequently granted a protection visa in 2011, having been found to meet the definition of a refugee due to his Hazara ethnicity and Shia religion from Afghanistan. He later obtained the Subclass 155 visa in 2015. The Department of Home Affairs initiated cancellation proceedings after a forensic facial image comparison indicated the applicant had used different names, dates of birth, and family details in previous visa applications, specifically a Global Special Humanitarian visa application in 2009.

The primary legal issue before the Tribunal was whether the applicant's Subclass 155 visa should be cancelled on the grounds that it was granted based wholly or partly on incorrect information or a bogus document. This required the Tribunal to consider the nature of the incorrect information provided, the circumstances under which it was given, and whether the applicant would still have been granted the protection visa had the correct information been disclosed. The Tribunal also implicitly considered the discretion to cancel the visa, given the applicant's ongoing applications for an offshore partner visa and Australian citizenship.

The Tribunal found that while the applicant had indeed provided incorrect information regarding his name, date of birth, and family members in his earlier protection visa application, this incorrect information did not fundamentally alter his profile as a Hazara Shia from Afghanistan, which was the basis for his protection visa grant. The Tribunal accepted the applicant's explanation that he provided false details out of fear for his safety and that of his family, given the historical persecution of the Hazara population in Afghanistan. Country information supported the applicant's claims of facing persecution. Crucially, the Tribunal was satisfied that the applicant would have been granted the protection visa even if he had disclosed his correct identity and visa history, as the incorrect information did not bear on the core reasons for protection.

Consequently, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal determined that the incorrect information provided was only of very small importance to the decision to grant the protection visa.