1927296 (Migration)

The applicant sought review of a decision by a delegate of the Minister for Home Affairs to cancel his Subclass 155 (Five Year Resident Return) visa under s.109(1) of the *Migration Act 1958* (Cth). The cancellation was based on allegations that the applicant had provided incorrect information in his visa applications, specifically concerning his identity and family composition, and had previously applied for a visa using a false identity. The applicant had arrived in Australia in 2010 as an Irregular Maritime Arrival and was subsequently granted a Subclass 866 (Protection) visa in 2011.

The primary legal issues before the Tribunal were to determine the applicant's correct identity, the reasons for the provision of incorrect information in past applications, and whether the cancellation of his Subclass 155 visa was warranted. This involved assessing the credibility of the applicant's explanations for discrepancies in his personal details and family history provided across various visa applications, including a 2005 application for a Refugee and Offshore Humanitarian (Subclass 202) visa made from Iran under an alias.

The Tribunal found that while the applicant had provided incorrect information in his 2005 visa application, including details about his date of birth and family composition, this was largely due to the circumstances in Iran. The Tribunal accepted that the applicant, as an Afghan refugee in Iran, had purchased a fraudulent "Amayesh" registration card under a false name out of necessity due to the lack of a functioning asylum system and the risks of arbitrary arrest and detention faced by Afghan refugees. The Tribunal also accepted that the applicant's actions in providing false information in the 2005 application were influenced by unscrupulous migration agents in Iran and a genuine fear for his safety and the need to support his family. However, the Tribunal found the applicant's evidence regarding his relationship with a second wife and three children to be inconsistent and lacking credibility, concluding that he had falsely included these children in his Protection visa application. Despite these findings of non-compliance, the Tribunal considered the applicant's circumstances, including his persecution as a Hazara Shia in Afghanistan, the cultural importance of family, and his positive standing within the Hazara community in Australia.

The Tribunal set aside the decision under review. It found that while the applicant had provided incorrect information in the 2005 application, this was done under duress and necessity in Iran, and that his subsequent applications, particularly the 2011 Protection visa application, contained correct information regarding his identity and reasons for seeking protection. The Tribunal concluded that the non-compliance in the 2005 application should not lead to the cancellation of his Subclass 155 visa, given the context and the applicant's subsequent conduct.