1926238 (Migration)

This matter concerned an application by a visa holder for review of a decision to cancel their Subclass 155 (Five Year Resident Return) visa. The applicant, a citizen of Pakistan, had previously been granted a Subclass 200 (Refugee) visa based on claims of fear of harm in Afghanistan due to their race and religion. The cancellation was based on alleged non-compliance with section 101(b) of the Migration Act 1958 (Cth) concerning incorrect information provided in relation to their Subclass 200 visa application and a UNHCR Resettlement Registration Form. The delegate's findings of non-compliance stemmed from an incorrect date of birth and the delegate's belief that the applicant was not a citizen of Afghanistan and had not experienced the claimed harm.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the Act by providing incorrect information, and if so, whether the visa should be cancelled. The specific allegations of non-compliance related to the applicant's date of birth and the details provided in their refugee claim, including their claimed experiences and fears in Afghanistan. The Tribunal also considered the validity of the notice issued under section 107 of the Act and whether it complied with statutory requirements.

The Tribunal found that while there had been non-compliance in relation to the applicant's date of birth and the provision of a further identity document, these issues were largely inadvertent and did not go to the substance of the reasons for the grant of the original refugee visa. The Tribunal accepted the applicant's fear of returning to Afghanistan due to their race and religion as well-founded, and noted the time that had elapsed since the non-compliance. Applying the principles of section 109 of the Act, the Tribunal considered all relevant circumstances and concluded that cancellation of the visa was not warranted.

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.