1925032 (Migration)

The Administrative Appeals Tribunal considered a decision to cancel the Subclass 155 (Five Year Resident Return) visa of an applicant who had arrived in Australia as a minor. The applicant had initially been granted a protection visa in 2013, and subsequently the Subclass 155 visa in 2018. The Department of Home Affairs alleged that the applicant had provided incorrect information in his protection visa application concerning his identity, migration history, and nationality, which formed the basis for the cancellation of his Subclass 155 visa.

The Tribunal was required to determine whether the applicant had provided incorrect information in his visa applications, thereby engaging the grounds for cancellation under section 109 of the Migration Act 1958 (Cth). Specifically, the Tribunal had to assess whether the applicant had failed to disclose previous visa applications or aliases, and whether such non-compliance warranted the cancellation of his current visa, considering the potential consequences for the applicant.

The Tribunal found that the applicant had indeed provided incorrect information in his protection visa application by stating he had never made a previous visa application, when he had been included as a secondary applicant on an offshore humanitarian visa in 2006. Furthermore, the applicant had failed to disclose a previous alias used in that application. However, the Tribunal also considered the mandatory legal consequences of visa cancellation, including the applicant's potential detention and removal from Australia, and the impact on his ability to make future visa applications. The Tribunal noted the significant amendments made by the Migration Amendment (Clarifying International Obligations for Removal) Act 2021, which clarified the relevance of non-refoulement obligations to removal.

Ultimately, the Tribunal set aside the decision to cancel the applicant's Subclass 155 visa, substituting a decision not to cancel the visa.