1926063 (Migration)

The Administrative Appeals Tribunal considered the case of an applicant whose Subclass 155 (Five Year Resident Return) visa was subject to potential cancellation. The dispute arose from the applicant's prior application for a different visa under an alias, which involved providing false biographical and travel information, and his subsequent arrival in Australia as an Irregular Maritime Arrival who was granted a protection visa. The applicant later applied for Australian citizenship and was invited to comment on adverse information concerning his identity.

The primary legal issue before the Tribunal was whether the applicant's Subclass 155 visa should be cancelled under section 116 of the Migration Act 1958 (Cth). This required the Tribunal to determine if the grounds for cancellation were made out, and if so, whether cancellation was warranted having regard to all relevant circumstances, including government policy. The Tribunal also had to consider the applicant's explanation for the false information provided in his earlier visa application, namely that it was lodged by a friend out of compassion due to the applicant's ethnicity and religion placing him in danger.

The Tribunal reasoned that while the applicant had provided false information in a previous visa application, and this could constitute a ground for cancellation, the circumstances as a whole did not warrant cancellation of his current visa. The Tribunal accepted the applicant's explanation for the false information, finding that it was provided by a friend due to the applicant's precarious situation. The Tribunal concluded that, in light of all the relevant circumstances, including the applicant's protection visa status and his subsequent application for citizenship, the visa should not be cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa.