1917114 (Refugee)

This matter concerned an application to review the cancellation of a protection visa granted to an Albanian citizen. The applicant had arrived in Australia in 2010 using a false passport and name, claiming refugee status due to persecution in Albania. While the falsity of his passport was known, his protection visa application was initially rejected but later granted in 2013 after an appeal to the Refugee Review Tribunal, which accepted his claims of persecution. Subsequently, the applicant travelled to Albania on multiple occasions to visit his son, failing to disclose these destinations on his immigration cards, which the delegate found to be a deliberate omission. The Department also received allegations of serious criminal offences committed by the applicant in a third country, [Country 1], which were reportedly confirmable by its government. A delegate issued a notice of intention to consider cancellation of the visa under s 109 of the *Migration Act 1958* (Cth) based on these undisclosed travel to Albania and the alleged adverse history in [Country 1].

The primary legal issues before the Tribunal were whether the applicant had provided incorrect information or failed to disclose information that was true at the time of his visa application, and whether he had committed certain offences or had an adverse criminal record, as contemplated by s 109 of the *Migration Act 1958* (Cth). The Tribunal was required to conduct a de novo hearing and determine the correct or preferable decision based on the evidence presented. A key consideration was whether to conduct an independent assessment of factual findings previously made in the applicant's favour by the Refugee Review Tribunal in 2013.

The Tribunal reasoned that while the applicant had deliberately failed to disclose his return visits to Albania, there was insufficient cogent and compelling evidence to establish the alleged serious criminal offences in [Country 1]. The Tribunal noted that the allegations were not confirmed by the [Country 1] Government, and therefore, it could not be satisfied that the applicant had provided incorrect information or failed to disclose information in relation to these alleged offences. Consequently, the Tribunal concluded that the decision to cancel the applicant's visa under s 109 of the Act should be set aside.

The Tribunal ordered that the decision to cancel the applicant's visa be set aside and substituted with a new decision that the applicant's visa not be cancelled under s 109 of the *Migration Act 1958* (Cth).