1917175 (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate to cancel the Subclass 155 (Five Year Resident Return) visa held by the applicant. The applicant, who claimed to be an Afghani citizen, had been granted a permanent Protection visa in 2013 based on his status as a Shia Hazara from Afghanistan. The delegate's decision to cancel the applicant's Resident Return visa was based on the applicant's alleged non-compliance with section 101 of the Migration Act 1958, which requires that no incorrect answers be given in visa applications and that information be updated when it is no longer correct.

The Tribunal was required to determine whether the applicant had indeed failed to comply with section 101 of the Act, as particularised in the notice of intention to consider cancellation, and if so, whether the visa should be cancelled. The notice detailed alleged incorrect answers provided by the applicant in his Protection visa application, his citizenship application, his spouse's partner visa sponsorship application, and his own Resident Return visa application. The Tribunal also considered the prescribed circumstances for cancellation under regulation 2.41 of the Migration Regulations 1994, lawful government policy, and Australia's international obligations, including the best interests of the child and non-refoulement obligations.

The Tribunal found that the applicant had, in fact, provided incorrect information in his Protection visa application and acknowledged this non-compliance. However, in considering whether to cancel the visa, the Tribunal weighed various factors. While acknowledging the applicant's intentional provision of incorrect information and non-genuine documents across multiple applications, which weighed in favour of cancellation, the Tribunal found strong countervailing considerations. These included the best interests of the applicant's two children in Pakistan, who would face significant hardship and potential separation if the visa were cancelled. Furthermore, the Tribunal noted that cancellation would likely lead to prolonged detention for the applicant, as he held a protection finding and was not liable for removal, and would significantly impact his ability to sponsor his family for migration to Australia.

Ultimately, the Tribunal concluded that the considerations against cancellation, particularly the best interests of the children and the significant legal consequences for the applicant, outweighed those in favour of cancellation. Accordingly, the Tribunal set aside the delegate's decision and substituted a decision not to cancel the applicant's Subclass 155 visa.