1917013 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, a male of Hazara ethnicity from Afghanistan, arrived in Australia in 2012 and was initially granted a protection visa. The Department later formed the view that the applicant had provided incorrect information in his visa applications, specifically regarding his name and family connections, based on a facial image comparison report linking him to an earlier visa application under a different name. The applicant responded to the notification of intention to consider cancellation, asserting the correctness of his original application and explaining that any prior use of a different name or inclusion in another application was without his knowledge at the time.

The Tribunal was required to determine whether the visa cancellation was justified. This involved assessing whether the protection visa was granted based wholly or partly on incorrect information or a bogus document, and considering the circumstances surrounding any non-compliance. Additionally, the Tribunal had to evaluate the applicant's present circumstances, including his contribution to the Australian community, and whether these factors warranted the exercise of discretion not to cancel the visa.

The Tribunal found that the incorrect information, relating to a prior visa application made by another individual who claimed the applicant as his son under a different name, had no bearing on the delegate's decision to grant the protection visa. The delegate's assessment of the applicant's well-founded fear of persecution as a young, unaccompanied Hazara Shia male unfamiliar with Afghanistan was not affected by this information. Furthermore, the Tribunal accepted the applicant's evidence that he was unaware of the earlier visa application and the associated incorrect information at the time he lodged his own application in 2012, noting he was a minor at that time. The Tribunal also took into account the applicant's significant contributions to the Australian community over nearly ten years of residence, including completing vocational training and employment as a qualified tradesperson, and the hardship he had faced since the cancellation of his visa.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa.