1916717 (Migration)

This matter concerned an appeal by a young male applicant against the cancellation of his Subclass 155 (Five Year Resident Return) visa. The applicant had arrived in Australia in April 2012 and was granted a Subclass 866 protection visa based on his claims of being a Hazara Shia from Afghanistan facing persecution. Subsequently, the Department became aware through data matching and biometric checks that the applicant had been included in an offshore humanitarian visa application in 2005 under a different name and family composition. A delegate of the Minister issued a notice of intention to consider cancellation of the applicant's protection visa on the grounds that he had provided incorrect information in his original protection visa application.

The primary legal issues before the Tribunal were whether the applicant had provided incorrect information in his protection visa application, and if so, whether the decision to grant that visa was based wholly or partly on that incorrect information. The Tribunal was also required to consider the circumstances of the non-compliance and the applicant's current circumstances in determining whether to exercise the discretion to cancel the visa. The incorrect information related to the applicant's assertion that he had never previously applied for refugee status or any other type of application to the Department, and his failure to disclose being known by another name, which was linked to a false passport.

The Tribunal found that the applicant had indeed provided incorrect information in his protection visa application, specifically by stating he had not previously applied for a visa and by failing to include a previous name by which he had been known. However, the Tribunal concluded that the decision to grant the applicant's protection visa in 2013 was not based on this incorrect information. The delegate's decision record indicated that the protection visa was granted based on the applicant's credible claims of persecution as a Hazara Shia from Afghanistan, including his abduction by the Taliban and his well-founded fear of persecution for reasons of race, religion, and political opinion. The Tribunal reasoned that even if the correct information had been known at the time, the applicant would still have been granted the protection visa for the same reasons.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa. While the applicant had provided incorrect information, the Tribunal determined that the original grant of the protection visa was not predicated on this misinformation. Furthermore, the Tribunal considered the applicant's explanation for providing the incorrect information – to avoid being linked to his brother in Australia and a prior visa refusal, as advised by people smugglers – and his current circumstances, including his employment and support for family in Pakistan. Given that the core reasons for the protection visa grant remained unaffected by the incorrect information, the discretionary power to cancel the visa was not exercised.