2002465 (Migration)

This matter concerned a review by the Tribunal of a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, a male from Pakistan, had initially arrived in Australia in 2012 without a valid visa and was granted a protection visa based on information provided that he was an Afghan national with a well-founded fear of persecution. Subsequently, in 2019, the Department formed the view that the applicant was a Pakistani national named [Name 1] born [Date 2]. This led to a notice of intention to cancel his resident return visa under s 116(1AA) of the Migration Act 1958 (Cth) due to concerns about his identity. The applicant provided Pakistani identity documents, which satisfied the delegate of his identity as [Name 1] born [Date 2] and a national of Pakistan. However, a subsequent notice of intention to cancel the visa was issued under s 109 of the Act, alleging non-compliance with s 101(b) due to incorrect information provided in his original protection visa application regarding his name, date and place of birth, citizenship, and circumstances in Pakistan.

The Tribunal was required to determine whether the applicant had failed to comply with the provisions of the Act as alleged in the notice, and if so, whether the cancellation of his visa was warranted. Specifically, the Tribunal considered whether the incorrect information provided in the protection visa application had a material bearing on the decision to grant that visa, the circumstances under which the non-compliance occurred, and the present circumstances of the visa holder, including his contributions to the community and the potential hardship to his Australian citizen wife and daughter. The Tribunal also had to assess the validity of the notice issued under s 107 of the Act and whether it adequately particularised the alleged non-compliance.

The Tribunal found that while the applicant had indeed provided incorrect information in his protection visa application, this information had little bearing on the decision to grant the visa, as the delegate had already noted the applicant had no personal recollections of Afghanistan and his Hazara race, Shia religion, and residence in Pakistan were not in dispute. The Tribunal accepted that the applicant, a young male at the time, was advised by people smugglers not to disclose his true identity to avoid issues with the Australian government, which led him to provide incorrect details to distance himself from his Pakistani identity documents. Despite this deliberate provision of incorrect information weighing in favour of cancellation, the Tribunal gave significant weight to the applicant's circumstances. He had resided in Australia for over ten years, was married to an Australian citizen, had an Australian citizen daughter, and his wife relied on him for significant practical, emotional, and financial support due to a serious car accident. The applicant was also a blood donor, a member of community organisations, and had consistently paid taxes.

Ultimately, the Tribunal concluded that the decision to cancel the applicant's visa should be set aside. The Tribunal was satisfied that the notice issued under s 107 complied with statutory requirements and that the applicant had failed to comply with s 101(b). However, when considering the discretionary factors, particularly the severe hardship to the applicant, his wife, and daughter, and the time that had elapsed since the non-compliance, the Tribunal determined that cancellation was not the appropriate course of action.