1915794 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an applicant who arrived in Australia in 2012. The applicant, who identified as a Shia Muslim of Hazara ethnicity from Afghanistan, was granted a protection visa after a delegate found he met the definition of a refugee. Subsequently, the Department formed the view that the applicant had provided incorrect information in his visa application, specifically regarding his name, visa history, and family in Australia, based on a facial image comparison linking him to an earlier visa application under an alias.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101 of the Migration Act 1958 by providing incorrect information in his protection visa application, and if so, whether his 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 applicant's responses to the notice adequately addressed the alleged non-compliance.

The Tribunal found that the section 107 notice was valid and provided sufficient detail for the applicant to respond. While the Tribunal acknowledged that the applicant had indeed provided incorrect information in his visa application, as alleged, it concluded that this non-compliance did not warrant the cancellation of his protection visa. The Tribunal considered the applicant's explanation for the incorrect information, which involved his sister providing his photograph under a different name on an earlier visa application without his knowledge, and took into account the prolonged separation from his family and his mental health issues.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel the visa.