1930514 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 155 (Five Year Resident Return) visa held by the applicant, a male who arrived in Australia in 2008. The Department of Immigration had formed the view that the applicant had provided incorrect information in his initial Global Special Humanitarian (Subclass 202) visa application concerning his marital status, the existence of children, and the death of his father at the hands of the Taliban. This led to a Notification of Intention to Consider Cancellation being issued under section 107 of the Migration Act 1958 (Cth).

The primary legal issue before the Tribunal was whether the applicant had provided incorrect information in his earlier visa application, as particularised in the section 107 notice, and if so, whether this warranted the cancellation of his current resident return visa. The applicant initially maintained his original statements were correct, asserting his son was born from an affair while his wife was married to another man, and that his father had indeed been killed by the Taliban. He also claimed a departmental officer had spoken to his wife's uncle, not his father, during a phone call.

However, a significant shift occurred in the applicant's evidence before the reconstituted Tribunal. The applicant conceded that he had provided incorrect information in his Global Special Humanitarian visa application, acknowledging he was married and had a child at the time of that application. He also admitted his father was alive in 2005 and died of illness in 2013, and that the person spoken to by the departmental officer was his father. The Tribunal found that the decision to grant the Global Special Humanitarian visa was based significantly on the incorrect information regarding the applicant's father's death, and it was unlikely the visa would have been granted had the correct information been known. The Tribunal concluded that the visa cancellation decision should be set aside.