2101819 (Migration)

The applicant, who held a Subclass 155 (Five Year Resident Return) visa, sought review of a decision to cancel that visa. The cancellation was based on the applicant having provided incorrect information in a previous protection visa application, specifically concerning their identity and Pakistani citizenship, and being known by another name. The dispute before the Tribunal concerned whether the visa should have been cancelled, and if so, whether discretion should be exercised not to cancel it.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with a condition of their visa by providing incorrect information in a prior application, and if so, whether the discretion to cancel the visa should be exercised. The Tribunal was required to consider the impact of the incorrect information on the original grant of the visa, the applicant's non-refoulment obligations, and the significant hardship that cancellation would cause to the applicant, particularly given their Hazara Shi'a ethnicity and present circumstances.

The Tribunal found that while there was non-compliance as described in the notice given under section 107 of the Migration Act 1958 (Cth), the central claims made in the applicant's previous protection visa application were not undermined by the incorrect information regarding their identity. Having regard to all the relevant circumstances, including the potential for refoulement and the significant hardship the applicant would face, the Tribunal concluded that the visa should not be cancelled. Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 visa.