1935319 (Migration)

The applicant, who held a Subclass 155 (Five Year Resident Return) visa, sought review of a decision to cancel that visa. The dispute concerned whether the applicant had failed to comply with a notice given under section 107 of the Migration Act 1958 (Cth), and if so, whether the visa should nonetheless be retained. The decision was made by Kira Raif, Senior Member, of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the applicant had engaged in non-compliance as described in the section 107 notice. A further, and ultimately determinative, issue was whether, having regard to all the relevant circumstances, the visa should be cancelled. This involved considering the applicant's identity and a previous application for refugee status, where the applicant was described as a young Hazara Shia male, in light of Australia's non-refoulement obligations.

The Tribunal reasoned that while there may have been non-compliance in the manner described in the section 107 notice, this did not necessarily undermine the basis upon which the visa was originally granted. The Tribunal concluded that, after considering all the relevant circumstances, including the applicant's background and potential implications of cancellation, the visa should not be cancelled. The Tribunal applied the principle that incorrect information provided in a previous context does not automatically invalidate a visa grant, particularly when considering broader humanitarian obligations.

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.