1932624 (Refugee)

The Administrative Appeals Tribunal considered the cancellation of a protection visa granted to an applicant who arrived in Australia in May 2012. The applicant was granted a Protection (Subclass 866) visa in September 2012, identifying himself as an Afghan national of Hazara ethnicity and Shia religion. Subsequently, the Department of Home Affairs issued a Notice of Intention to Consider Cancellation (NOICC) based on a forensic facial image comparison report which indicated the applicant was the same person as individuals who had made previous visa applications under different names, dates of birth, and with differing family details.

The Tribunal was required to determine whether the ground for cancellation was made out and, if so, whether the visa should be cancelled. This involved assessing the credibility of the applicant's explanations for the discrepancies in his previous applications and considering the implications of his identity and circumstances on the cancellation decision. The legal issues encompassed the proper exercise of discretion in visa cancellation, particularly when incorrect information has been provided, and the application of the non-refoulement principle in the context of a "westernised returnee."

The Tribunal reasoned that while the applicant had conceded providing incorrect information in previous visa applications, he had also provided credible evidence establishing his identity as [the applicant], a [Age 1]-year-old Afghan national of Hazara ethnicity and Shi’a religion. The Tribunal accepted his explanation that he understated his age in earlier applications to be treated as a minor and that his parents had fled Afghanistan before his birth, with him residing in Iran as a refugee until his arrival in Australia. The Tribunal noted his education, work, and community activities in Australia, and the fact that his family's refugee status in a third country meant he would lose his refugee status upon departure.

Ultimately, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal found that the applicant's circumstances, including his established identity and his status as a "westernised returnee" with significant ties to Australia, weighed against cancellation. The Tribunal's decision was informed by the principle of non-refoulement and a holistic assessment of the evidence and the applicant's submissions.