1916855 (Migration)

The applicant, who held a Subclass 155 (Five Year Resident Return) visa, sought review of a decision to cancel that visa. The dispute concerned whether the applicant had failed to comply with a notice given under section 107 of the Migration Act 1958 (Cth), and if so, whether the visa should be cancelled. The decision was made by Kira Raif, Senior Member, of the Administrative Appeals Tribunal.

The Tribunal was required to determine whether the applicant had engaged in conduct that constituted non-compliance with the notice under section 107 of the Act. Furthermore, the Tribunal had to consider whether, in light of all the relevant circumstances, the visa should be cancelled, taking into account the applicant's personal circumstances and any potential non-refoulement obligations.

The Tribunal concluded that while there may have been non-compliance as described in the section 107 notice, the totality of the circumstances did not warrant visa cancellation. The applicant's background, including their Pakistani citizenship, Hazara ethnicity, Shia religion, and fear of Sunni extremists, along with concerns about financial hardship and the prior incorrect declaration of family composition by their brothers in Australia, were all considered relevant. The Tribunal found that these factors weighed against cancellation.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.