1917136 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 790 (Safe Haven Enterprise Visa) held by the applicant, an Afghan national of Hazara ethnicity. The applicant had arrived in Australia in March 2013 and was granted the visa in January 2017. The Minister's delegate issued a notification of intention to consider cancellation on the grounds that the applicant had provided incorrect information in his visa application, specifically concerning his name, date of birth, and previous visa applications.

The Tribunal was required to determine whether the applicant had failed to comply with the relevant provisions of the Migration Act 1958 (Cth) by providing incorrect information, and if so, whether the visa should be cancelled. The core legal issues revolved around the validity of the notice of intention to cancel, the nature and impact of the alleged incorrect information, and the exercise of discretion regarding cancellation.

The Tribunal found that while the applicant had indeed provided incorrect information regarding his name, date of birth, and previous visa applications, this non-compliance did not warrant cancellation. The Tribunal reasoned that the original decision to grant the visa was based on the applicant's well-founded fear of persecution due to his Hazara ethnicity and Shia religion, which were not in dispute. It was satisfied that the visa would have been granted even if the correct information had been provided. Furthermore, the Tribunal noted that the applicant was a minor at the time of his earlier visa applications and that the incorrect information was provided on the misguided advice of his sister, who feared it would link him to previous refusals and jeopardise his safety in Afghanistan. The Tribunal also considered the applicant's positive contributions to the Australian community through volunteer work and his employment.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa, concluding that cancellation was not warranted in the circumstances.