1935319 (Migration)

[2021] AATA 2589

1935319 (Migration) [2021] AATA 2589 (26 May 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:1935319

MEMBER:Kira Raif

DATE:26 May 2021

PLACE OF DECISION:  Sydney

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

Statement made on 26 May 2021 at 11:52am

CATCHWORDS

MIGRATION – cancellation – Return (Residence) (Class BB) visa – Subclass (155) (Five Year Resident Return) – satisfied as to the applicant’s identity – unstated other identities – previous application for refugee status – young Hazara Shia male – non-refoulement obligations – incorrect information does not undermine the basis of visa grant – decision under review set aside    

LEGISLATION

Migration Act 1958 (Cth), ss 101-105, 107, 107A, 109, 197C, 198
Migration Regulations 1994 (Cth), r 2.41

CASES

MIAC v Khadgi (2010) 190 FCR 248
Wan v MIMA (2001) 107 FCR 133    

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

Application for review

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass (155) (Five Year Resident Return) visa under s.109(1) of the Migration Act 1958 (the Act).

2. The applicant was granted a Class XA Protection visa in May 2012 and a Resident Return visa (RRV) in May 2018. On 7 June 2019 the applicant was issued with the Notice of Intention to Consider Cancellation (NOICC) because the delegate formed the view that the applicant did not comply with s. 101 of the Act in relation to his protection visa application. The applicant provided his response to the NOICC and his visa was cancelled on 6 December 2019. The applicant seeks review of the delegate’s decision.

3. The applicant appeared before the Tribunal on 26 May 2021 to give evidence and present arguments. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages. The applicant was represented in relation to the review. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Relevant law

4. Section 109(1) of the Act allows the Minister to cancel a visa if the visa holder has failed to comply with ss.101, 102, 103, 104, 105 or 107(2) of the Act. Broadly speaking, these sections require non-citizens to provide correct information in their visa applications and passenger cards, not to provide bogus documents and to notify the Department of any incorrect information of which they become aware and of any relevant changes in circumstances.

5. The exercise of the cancellation power under s.109 of the Act is conditional on the Minister issuing a valid notice to the visa holder under s.107 of the Act, providing particulars of the alleged non-compliance. Where a notice is issued that does not comply with the requirements in s.107, the power to cancel the visa does not arise.

6. Section 107A of the Act specifies non-compliance in relation to an application for a previously held visa, can constitute grounds for cancellation of the currently held visa.

   Did the notice comply with the requirements in s.107?

7. Section 107 is only engaged if the Minister or delegate considers that the visa holder has not complied with one of the provisions mentioned in s.107(1). It is only then that the Minister or delegate is entitled to give notice to the visa holder under s.107. Therefore, if a notice is to be given under s.107, the Minister or delegate must have reached a state of mind where they consider that the visa holder has not complied with one or more of the relevant provisions.

8. The Tribunal has considered the validity of the NOICC. The Tribunal is satisfied that it contains sufficient particulars to enable the applicant to identify and address the issues and also that the delegate had reached the necessary state of mind to engage s.107. The Tribunal is satisfied that the notice issued under s.107 complied with the statutory requirements.

   Was there non-compliance as described in the s.107 notice?

9. The issue before the Tribunal is whether there was non-compliance in the way described in the s.107 notice, being the manner particularised in the notice, and if so, whether the visa should be cancelled. The non-compliance identified and particularised in the s.107 notice was non-compliance with s. 101 of the Act.

10. The applicant provided to the Tribunal a copy of the primary decision record. It indicates that  the applicant entered Australia in October 2011 as an irregular maritime arrival and in May 2012 he made the application for the Class XA protection visa, which was granted on 23 May 2012. When making the application, the applicant completed Form 866 in which he gave the following answers.

    a.In response to Questions 1 and 8 the applicant stated his name and date of birth

    b.The applicant did not provide a response to Question 4 whether he had been known by other names. 

    c.The applicant stated ‘no’ in response to Question 3 whether he had previously made any other application to the Department.

    d.At Question 13 the applicant listed his close relatives, stating that his father was missing and that his mother and [specified family members] were resident in Iran

    e.The applicant signed a declaration at Question 67 that the information he had supplied was complete, correct and up to date.

11. The primary decision record indicates that a facial image comparison report was completed in May 2019 which compared the photographs lodged with the application for [earlier specified visas] in November 2002 and May 2009 and the photographs submitted by the applicant with his protection visa application made in May 2012. The report concluded that the images represent the same person. Thus, [Alias A] (with a different date of birth) was included as a dependent in [an earlier specified] visa application made in November 2005 by his mother as the primary applicant and that application was refused. In May 2009 [the applicant’s name] was included in another application for [another] visa. The primary applicant was his father, even though in the first application it was claimed the father was missing. That application was also refused. In his application for the protection visa the applicant gave a different date of birth and a different name.

12. The applicant subsequently made a request to change his date of birth and in January 2013 he sponsored his mother, father and [specified family members]. In that application the applicant claimed that his father was kidnapped by the Taliban in 2007 and reunited with his family in 2014. That application was refused.

13. In February 2013 the applicant’s brother arrived in Australia and applied for, and was granted, a [different visa]. In his application the brother claimed that his father had been missing since 2006 and has not been heard from since that time.

14. In June 2015 the applicant sponsored his then partner for a Partner visa. The relationship broke down and the application was refused in October 2018. In November 2018 the applicant sponsored another partner for a Partner visa. The applicant told the Tribunal that  application remains outstanding.

15. In his response to the NOICC the applicant refers to his illness and states that he forgot to mention the previous applications due to his illness. The Tribunal does not accept that  explanation. The applicant’s claimed condition had not prevented him from being able to undertake what would have been a difficult journey from Afghanistan to Australia and successfully seek protection. Having been granted an Australian visa, the applicant has been able to settle in this country and subsequently sponsor several other people for visas. In such circumstances, and in the absence of probative medical evidence indicating that the applicant’s condition has affected his memory, the Tribunal does not accept that to be the case. The Tribunal does not accept the applicant ‘forgot’ about his earlier applications due to illness. The applicant also states that he was not aware of one of the earlier applications and thought his mother had mistakenly given an incorrect date of birth for him. The applicant states that his English was limited when he applied for the protection visa and he notes that  different transliterations are possible of his name, while dates of birth are not important in their culture, so he did not provide incorrect information about his identity.

16. In oral evidence, the applicant concedes that he had given an incorrect date of birth in his application. The applicant states that he did so on the advice of others who suggested that  he should claim to be under the age of 18. He also gave an incorrect date of birth when on board of the Navy ship because he was not in good condition. The applicant apologised for his conduct. The applicant also states that he was not in the right frame of mind and forgot about his previous applications. The applicant states that he was not the main applicant and was not involved in the application process. He was not in a good condition and had to give answers very quickly, so he forgot the earlier applications. The applicant states that the earlier application forms were completed in by another person who did not explain to him fully what was needed and may have given incorrect information about the dates of birth.

17. With respect to his father, the applicant states that when he was sponsoring his mother, his father had returned home and he felt obliged to tell the correct information to the Department. However, his brother made the decision to give the incorrect information in his own visa application, even though he knew the information was incorrect.  

18. It is not in dispute that the applicant had previously made visa applications (or was included in the applications made by others). His name and dates of birth had been variously recorded in these applications. The use of different names (even if the applicant claims these were the same names differently transliterated), coupled with different dates of birth, would indicate that the applicant had been known by other names and he did not declare these in response to the questions on the protection visa application form.

19. The Tribunal finds that the applicant had given incorrect answers by failing to state other names he had been known by and by failing to refer to the earlier applications that he had made. The Tribunal finds that the applicant completed the application form in a way that incorrect answers were given. The Tribunal finds that  there was non-compliance with s. 101 of the Act in the way described in the Notice.

    Should the visa be cancelled?

20. As the Tribunal has decided that there was non-compliance in the way described in the notice given to the applicant under s.107 of the Act, it is necessary to consider whether the visa should be cancelled pursuant to s.109(1). Cancellation in this context is discretionary, as there are no mandatory cancellation circumstances prescribed under s.109(2).

21. In exercising this power, the Tribunal must consider the applicant’s response (if any) to the s.107 notice about the non-compliance, and have regard to any prescribed circumstances: s.109(1)(b) and (c). The prescribed circumstances are set out in r.2.41 of the Regulations. Briefly, they are:

    The correct information

22. The correct information is that  the applicant had previously used different names and dates of birth and was therefore known by other names. The correct information also is that the applicant had previously made other visa applications. The applicant submits that his correct name and date of birth is the name recorded in his Tazkera, even if the transliteration of his name is different.

23. With respect to his age, the applicant claims he was born in [year], which is the date of birth recorded in his Tazkera, and that he was about [age] at the time he made the application for the protection visa. This is consistent with the information in the primary decision record, which indicates that the applicant’s applications made in 2005 and 2009 contained photographs of a young adult or a teenager, which would contradict the applicant’s claim in the protection visa application that he was born in [year] and was only [age range] years of age at the time of the first application. The delegate also notes that the applicant did sign the application in 2009 and claimed to be over the age of 18 in that application, which would also contradict the claim in his protection visa application that he was only [age] at the time and his claim that he was unaware of that application. Having regard to these matters and the applicant’s own evidence, the Tribunal finds that the applicant had intentionally misrepresented his date of birth in his protection visa application. The applicant’s oral evidence that he was advised by others to misrepresent his date of birth so as to appear under 18 when the application was made.

    The content of the genuine document (if any)

24. This is not relevant in the present case.

    Whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document

25. An applicant’s identity is a significant aspect of any visa assessment. It is relevant to the assessment of one’s character while information about prior applications may be relevant to the assessment of one’s credibility and to the assessment of the claims that ultimately led to the applicant being found to be a refugee and granted the visa.

26. The applicant states in his response to the NOICC that his claims were true and he made genuine protection claims and he remains fearful of being returned to Afghanistan but it is not necessary for this Tribunal to determine for the purpose of this factor whether the applicant would have been granted the visa, if the correct information was known. It is sufficient to state that an assessment of any visa criteria relies on the assessment of one’s identity and in this case, the applicant provided incorrect answers about the identities he was previously known by. Further, the fact that the applicant had made other visa applications which were unsuccessful may have been relevant to the decision-maker when assessing the applicant’s claims.

27. The Tribunal finds that the decision to grant the protection visa was based, in part, on incorrect answers. However, it is not apparent that the decision to grant the Resident Return visa was based on incorrect information.

    The circumstances in which the non-compliance occurred

28. In his response to the NOICC and oral evidence to the Tribunal the applicant states that the various names are different transliterations of his correct name but that does not explain the use of various names coupled with different dates of birth. The applicant submits that dates of birth are not important in his culture, are not officially recorded and are approximate. That may be the case but the Tribunal is mindful that there is a substantial difference in the applicant’s recorded age. The primary decision record indicates that the three identities that the applicant used in his three applications recorded his date of birth as [three specified years] respectively. The Tribunal does not accept that such a significant difference in ages spanning 13 years can be explained by inaccurate recording or lack of attention to one’s date of birth. As noted above, the applicant concedes that he was born in [year] and that he had intentionally misrepresented his date of birth when he was interviewed upon arrival in Australia, stating that he was unwell after the boat journey and also because he acted on the advice of others. The applicant expressed remorse for doing so.

29. The applicant claims that if he wanted to conceal his identity, he would have given completely different information about his identity. This was not what happened in his case and he genuinely forgot about his previous applications.

30. The applicant submits that he did not refer to the earlier applications because of his medical condition, lack of knowledge and understanding, lack of English, his poor mental state and because he was unaware of the second application. The Tribunal does not accept these explanations. As noted above, the applicant had signed the second application and the Tribunal is therefore of the view he would be aware of it. As noted above, there is no probative evidence that the applicant’s medical condition would have affected his memory and this is particularly so as the applicant appeared to have had no difficulty providing many other details in the application form. The same reasoning applies to the applicant’s claimed lack of English. It did not prevent the applicant form completing the forms, providing responses to many other questions and setting out his claims, which all led to the grant of the visa. The Tribunal does not accept that the applicant had sufficient knowledge and English to do all such tasks but not to refer to the earlier visa applications. The applicant also submits that another person completed his earlier applications and he does not know what was contained in those application. However, as the Tribunal explained in the course of the hearing, the applicant maintains responsibility for his own visa application, even if he received assistance in completing the paperwork.

    The present circumstances of the visa holder

31. The applicant states that he has been residing in Australia continuously since 2013 and has been a productive member of the community. The applicant told the Tribunal that he has been working in [a business], which is physically demanding. The applicant refers to his study to become [an occupation] and other courses which he has successfully completed. The applicant refers to his employment in [the business] in Australia since 2013. He presented to the delegate a letter of support from his employer and he presented a number of supporting statements in his evidence to the Tribunal. The Tribunal accepts that evidence.

32. The applicant presented to the Tribunal evidence of his medical condition and treatment. The Tribunal accepts the applicant suffers from a number of conditions and has received treatment.

33. The applicant presented to the Tribunal a psychological assessment completed by [a named professionl] in March 2021. The Tribunal is mindful that much of the information in that assessment is based on the applicant’s self-reporting, and there is reference to self-reported symptoms. It is not apparent from the report that any independent assessment of the applicant’s condition has been undertaken. The Tribunal considers the report to be largely inadequate but despite its concerns, the Tribunal accepts the professional opinion set out in it.

34. The applicant told the Tribunal that he enjoys his work and is settled in this country and hopes to buy a house. His brother lives in Australia and he has more distant relatives in this country.

    The subsequent behaviour of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act

35. Nothing adverse is known about the applicant’s behaviour concerning his obligations under the Act.

    Any other instances of non-compliance by the visa holder known to the Minister

36. The primary decision record notes that when making the application for the [earlier specified] visa in 2013, the applicant did not declare his previous application. The applicant explained to the Tribunal that he genuinely forgot about that application and it was not until he received the NOICC that he realised he did not disclose that information.

    The time that has elapsed since the non-compliance

37. The application for the protection visa was made in 2012 and nine years passed since the non-compliance. The Tribunal acknowledges it is a lengthy period.

    Any breaches of the law since the non-compliance and the seriousness of those breaches

1. There are no known breaches of the law.

   Any contribution made by the holder to the community.

2. The applicant refers to his employment and provided a character reference in response to the NOICC. He presented to the Tribunal a supporting statement from the [named community organisation] which refers to the applicant participating in community events and help to others. The applicant states that he has helped community members with matters of technology. He also presented a receipt for a donation to [a named agency] (made shortly before the Tribunal hearing). The Tribunal accepts the applicant has made some contribution to the community.

3. While these factors must be considered, they do not represent an exhaustive statement of the circumstances that might properly be considered to be relevant in any given case: MIAC v Khadgi (2010) 190 FCR 248. The Tribunal may also have regard to lawful government policy. The relevant policy is set out in the Department’s Procedural Advice Manual) PAM3 ‘General visa cancellation powers’, which refers to matters such as the consequences of cancelling the visa, international obligations and any other relevant matters.

   Whether there would be consequential cancellations under s.140.

4. There are no persons who would  be subject to consequential cancellation.

   If there are children whose interests would be affected by cancellation, or consequential cancellation, decision-makers should consider the best interests of those children as a primary consideration when deciding whether to cancel the visa. (NOTE: It has been said that the question is what decision is in the best interests of the child, not what the children might do if their parent were required to cease living in Australia: Wan v MIMA (2001) 107 FCR 133, at [27]-[28].)

5. There are no children who would be affected by the cancellation of the visa.

   Whether the cancellation would lead to the person's removal in breach of Australia's non-refoulement or family unity obligations.

6. The Tribunal has considered whether Australia’s non-refoulment obligations arise in this case. Other than CROC, non-refoulement obligations are generated, explicitly or implicitly, by the 1951 Convention relating to the Status of Refugees (Refugees Convention) and its 1967 Protocol, the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR).

7. The applicant states that he is a Hazara and a Shi’a Muslim and there are groups and organisations that continue to attack young Hazaras. The applicant states that he would be easily identified as a Hazara because of his physical features and he would face harm due to his ethnicity and religion. The applicant refers to the suicide attacks and recent kidnappings and killings.

8. The applicant was granted the protection visa on the basis of his claim of being a Hazara in Afghanistan. It is significant, in the Tribunal’s view, that the veracity of this aspect of the applicant’s claims has not been questioned. The Tribunal accepts that the applicant is a Hazara and had identified as a Shi'a Muslim before coming to Australia.

9. The Tribunal has had regard to country information concerning the situation of the Hazaras in Afghanistan. In its most recent report on Afghanistan, DFAT reported that, since mid-2016, militants have conducted an ongoing series of major attacks against Shi'a targets. Islamic State in Khorasan Province (ISKP) has claimed responsibility for many of the attacks.

10. In its 2018 Annual Report on Protection of Civilians in Armed Conflict, the United Nations Assistance Mission in Afghanistan (UNAMA) provided the following information:

    [ISKP] was formally established in January 2015, following the progressive and partial realignment of some dissident factions or fighters from the Taliban, the Islamic Movement of Uzbekistan and the Tehrik-e-Taliban Pakistan. Daesh/ISKP is present in the east of Afghanistan, with an estimated 3,000 fighters currently active, primarily in Nangarhar and Kunar provinces. Its expansion has been constrained by Afghan National Defense and Security Forces/international military forces operations (including airstrikes), local militia mobilization and, separately, Taliban offensives. As its territorial expansion became compromised, Daesh/ISKP has increasingly relied on asymmetric tactics, including suicide and complex attacks deliberately targeting civilians (including most prominently the Shia Hazara community) in Kabul, Herat and Jalalabad cities.

11. In 2018, UNAMA documented high levels of sectarian-motivated violence by Daesh/ISKP against the Shi'a Muslim religious minority population, most of whom also belong to the Hazara ethnic group. From 1 January to 31 December 2018, UNAMA documented 19 incidents of sectarian-motivated violence against Shi'a Muslims, resulting in 747 civilian casualties and representing a 34 per cent increase in civilian casualties from such attacks as compared to 2017. UNAMA expressed grave concern about 'the safety and security of this religious minority population, and about the extent to which these attacks are impeding their freedoms of religion and movement and quality of life.'

12. DFAT's Thematic Report on Hazaras in Afghanistan stated:

    The continuing armed insurgency and deteriorating security situation has limited the ability of Afghans to travel safely from one part of the country to another by road… DFAT assesses that Hazara face a greater risk than other ethnic groups of being targeted for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped, particularly while travelling to or from the Hazarajat. In addition, economic and employment opportunities may be more limited in the Hazarajat than in other parts of the country.

13. In its June 2019 report, DFAT reiterated these views:

    Insecurity compounds the poor condition of Afghanistan's limited road network, particularly on roads that pass through areas contested by insurgents. The Taliban, other anti-government groups and criminal elements target the national highway and secondary roads, and unofficial checkpoints manned by armed insurgents are common…

14. In-country sources have advised that ethnic targeting can play a role in the selection of victims once an abduction is in progress, and that Hazara are particularly at risk in this regard. DFAT assesses that while abduction while travelling by road is a risk for Afghans of all ethnicities, Hazaras remain particularly vulnerable to being selected for abduction or violence if a vehicle carrying a mix of ethnic groups is stopped.

15. Having regard to this information, as well as the earlier assessment of the applicant’s claims that resulted in him being granted the Protection visa, the Tribunal has formed the view for the purpose of the present review only, that the applicant faces a real chance of being subjected to serious harm in Afghanistan. The obligation not to refoule a refugee is contained in Article 33(1) of the Refugees Convention. Thus, the Tribunal finds that Australia may be in breach of its international obligations under the Refugees Convention if the applicant was removed to Afghanistan as a consequence of the cancellation of his visa.

16. However, it is important to note that the cancelation of the applicant's visa in itself would not be in breach of any of Australia's non-refoulement obligations. These obligations may be breached only if the applicant was forcibly removed from Australia. An applicant whose visa is cancelled and becomes an unlawful non-citizen is liable to be removed from Australia. Section 197C of the Act provides that the existence of non-refoulement obligations to a person is 'irrelevant' to the removal of a person, and the duty of an officer under s.198 of the Act to remove a person 'as soon as reasonably practicable.' However, Departmental policy states that a non-citizen would not be removed where Australia would be in breach of its non-refoulement obligations under the aforementioned international agreements. For that reason, the Tribunal finds that the cancellation of the visa would not be in breach of Australia’s international obligations, because Australia will comply with the above agreements.

17. The Tribunal is also mindful that the applicant may be eligible to seek another protection visa in Australia where his claims would be assessed on the basis of his present circumstances and in light of the correct information. Should the applicant be found to be a refugee, the applicant may be granted a visa (even if only a temporary one). For that reason also, the Tribunal finds that Australia non-refoulement obligations would not be breached as a result of the visa cancellation.

    Whether there are mandatory legal consequences, such as whether the person would become unlawful and liable to detention and removal, whether detention is a likely consequence of the cancellation decision and if so, for how long, and whether there are provisions in the Act which prevent the person from making a valid application for any visa without the Minister personally intervening.

18. If the applicant’s visa is cancelled and if he does not hold any other visa, the applicant would become an unlawful non-citizen and be subject to mandatory detention and removal from Australia. The applicant may be eligible to make a valid visa application for certain visas without the Minister’s intervention although there are limited types of visas that he can apply for onshore. The applicant’s options may also be limited by the mode of his arrival in Australia, although that is not a consequence of the present visa cancellation. An offshore application for a visa may be subject to an exclusion period. The cancellation of a permanent visa would result in the applicant losing the benefits that he may have acquired as a holder of a permanent visa. If the applicant is not a holder of a permanent visa, he may be unable to sponsor his partner for a visa.

    Any other relevant matters (including the degree of hardship that may be caused to the visa holder and any family members).

19. The applicant states that even if he can apply for another visa onshore, he would only be able to make an application for a temporary visa because of his arrival as an IMA, and it would have a huge impact on his life. He would be unable to settle in Australia, and buy a house and he would be unable to sponsor his wife as a temporary visa holder. The applicant spoke of the hardship he faces due to being separated from his wife. The Tribunal accepts that considerable hardship would be caused to the applicant by the cancellation of the visa because, effectively, he may not be able to hold permanent residence and is unlikely to be able to bring his wife to Australia.

20. The Tribunal has found that the applicant completed the application form in a way that incorrect answers were given and that there are grounds for cancelling his visa under s. 109 of the Act.

21. The Tribunal has considered the totality of the applicant’s circumstances. The Tribunal has formed the view that the decision to grant the visa was based, in part on incorrect information because an applicant’s identity is central to any assessment of visa criteria and this weighs in favour of the cancellation. However, the Tribunal considers it significant in this case that the incorrect information does not undermine the basis of the visa grant. That is, the applicant made claims, and was accepted as being owed non-refoulement obligations, because of his Hazara ethnicity and his religion and there is nothing in the NOICC to suggest that these claims were untrue. It is therefore very likely that the applicant would have been granted the visa if the correct information was known and in the Tribunal’s view, that weighs very heavily against the cancellation.

22. The Tribunal gives weight to the available country information which indicates that Hazaras continue to face a heightened risk of harm. While the applicant may be eligible to seek another protection visa onshore, he may only be eligible to obtain a temporary visa because of the mode of his arrival and the fact that he may still be owed protection obligations also weighs against the cancellation. The Tribunal acknowledges that the applicant has spent considerable time in Australia and is settled in this country, he has provided references and has made a contribution to the community. The Tribunal has formed the view that considerable hardship would be caused if the visa is cancelled.

23. Overall, the Tribunal places greater weight on the fact that the incorrect answers do not appear to undermine the basis of the visa grant and the hardship that would be caused if the visa is cancelled.

24. The Tribunal has decided that there was non-compliance by the applicant in the way described in the notice given under s.107 of the Act. Further, having regard to all the relevant circumstances, as discussed above, the Tribunal concludes that the visa should not be cancelled.

    DECISION

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

    Kira Raif
    Senior Member