2016248 (Migration)

This matter concerned an appeal to the Administrative Appeals Tribunal concerning the cancellation of a Subclass 155 (Five Year Resident Return) visa. The applicant, a secondary applicant on his mother's refugee visa, had his visa cancelled due to concerns about his identity. These concerns arose from discrepancies between his current citizenship application and a previous refugee application, including different names, dates and places of birth, family compositions, and employment details, compounded by a lack of knowledge of these details by his father and brother, and a passport issued in a third country based on self-reported, unverified details.

The Tribunal was required to determine whether the ground for cancellation under s.116(1)(AA) of the *Migration Act 1958* (Cth) existed, and if so, whether to exercise its discretion to cancel the visa. The ground for cancellation was established as the Tribunal was not satisfied as to the applicant's identity due to the noted inconsistencies and the unreliability of his primary identity document. However, this ground did not mandate cancellation under s.116(3).

In considering the exercise of discretion, the Tribunal had regard to various factors, including the applicant's compelling need to remain in Australia due to his close family ties and the current country information regarding risks to Hazara Shias in Afghanistan. The Tribunal also noted the applicant's compliance with visa conditions, the significant financial, emotional, and psychological hardship that cancellation would cause his family, and the fact that another substantive visa application was pending. The Tribunal found no adverse information regarding the applicant's behaviour towards the Department.

Ultimately, the Tribunal concluded that, considering all the circumstances, the visa should not be cancelled. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 155 visa.