2000665 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa of the applicant. The dispute arose from the applicant's provision of incorrect information regarding his name and citizenship in a prior application for a Protection visa. The applicant, who claimed to be Afghani and feared harm in Afghanistan, was later assessed by the Department as being a Pakistani citizen.

The Tribunal was required to determine whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 by providing incorrect answers in his visa application, and if so, whether the visa should be cancelled. The non-compliance specifically related to the applicant's claim of Afghan citizenship and the provision of a different name and date of birth in his Protection visa application, which was later conceded by the applicant to be incorrect in his response to a notice issued under section 107 of the Act.

The Tribunal found that the applicant had indeed provided incorrect information regarding his name, nationality, and date of birth, thus constituting non-compliance with section 101(b) of the Act. However, after considering all relevant circumstances, including the applicant's marriage to a permanent resident, his support for family members in Australia and his home country, the loss of work rights, concerns for family unity, his mental health, and the country information supporting his fear of harm as a Hazara Shia, the Tribunal concluded that the visa should not be cancelled. The Tribunal noted that the decision to cancel the visa was made without a hearing, which was deemed necessary.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 visa.