1916280 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa of the applicant, a male of Hazara Shia ethnicity from Afghanistan. The applicant had arrived in Australia in March 2010 and was subsequently granted a protection visa in October 2011, followed by the Resident Return visa in August 2016. The Department of Home Affairs initiated cancellation proceedings after a facial image comparison report indicated the applicant was the same person as an individual who had applied for a Global Humanitarian visa in 2005 under a different name, with his uncle as the sponsor.

The primary legal issue before the Tribunal was whether the applicant's protection visa had been granted based wholly or partly on incorrect information or a bogus document, and the circumstances surrounding any such non-compliance. Specifically, the Tribunal had to determine if the applicant had provided incomplete or incorrect information regarding his name, previous visa history, and relatives in Australia, and if this information was material to the grant of his protection visa. The Tribunal also considered the applicant's age and awareness at the time of the earlier visa application and his current circumstances in Australia.

The Tribunal reasoned that while there was indeed incorrect information in the earlier visa application, it did not materially affect the grant of the protection visa. The decision to grant protection was based on the applicant's well-founded fear of persecution due to his Hazara ethnicity, Shia religion, and imputed political opinion as a supporter of the Afghan government. The Tribunal accepted the applicant's evidence that he was a minor at the time of the 2005 application, unaware of its contents, and that his father and uncle were primarily responsible for its preparation, leading to the inaccuracies. The Tribunal was satisfied that the applicant would have been granted the protection visa regardless of the earlier application and the associated incorrect information.

Consequently, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal found that the incorrect information did not bear on the core reasons for granting protection and that the applicant was not aware of or responsible for the inaccuracies in the 2005 application. The Tribunal also noted the applicant's established life in Australia, including his employment and community connections, as further considerations.