2004699 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 200 (Refugee) visa granted to the applicant. The applicant had arrived in Australia in April 2014, having lodged his visa application in April 2013, claiming to be an Afghan citizen of Hazara ethnicity and Shia Muslim faith. He stated he fled Afghanistan to Pakistan, married a Pakistani citizen, and had three children. The delegate's decision to cancel the visa was based on the belief that the applicant had provided incorrect information regarding his nationality, specifically that he was a Pakistani citizen.

The Tribunal was required to determine whether the grounds for cancellation were made out, and if so, whether the visa should be cancelled. This involved assessing whether the applicant had provided incorrect information about his citizenship, and whether his children were entitled to Pakistani citizenship. The Tribunal also considered the validity of a non-disclosure certificate issued by the Department and the disclosure of adverse information to the applicant.

The Tribunal found that the applicant had consistently maintained his claim of being an Afghan citizen of Hazara ethnicity and Shia faith throughout his interactions with the UNHCR, the Department, and the Tribunal. While the applicant possessed a Pakistani CNIC verified by NADRA, the Tribunal accepted his explanation that this was obtained fraudulently, a possibility supported by country information indicating that genuine identity documents can be fraudulently obtained by Afghan refugees in Pakistan. Crucially, the Tribunal examined Pakistani citizenship law and country information, concluding that Afghan refugees and their children born in Pakistan generally do not have a legal pathway to Pakistani citizenship, even if married to a Pakistani citizen or born to a Pakistani mother. Therefore, the Tribunal was not satisfied that the applicant had provided incorrect information about his Afghan citizenship or his children's lack of entitlement to Pakistani citizenship.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 200 (Refugee) visa. The Tribunal concluded that there was no non-compliance of the type alleged in the notice given under section 107 of the Migration Act 1958, and therefore the discretionary power to cancel the visa did not arise.