2102897 (Migration)

The Administrative Appeals Tribunal reviewed a decision concerning the cancellation of the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, who claimed to be an Afghan national of Hazara ethnicity and Shia faith, had been granted a Subclass 866 protection visa in 2010 based on his claims of persecution. The Department of Home Affairs subsequently issued a notice of intention to cancel his protection visa, alleging he had provided incorrect information in his original application regarding his Pakistani citizenship, his father's name, and the status of his brother.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of section 101 of the *Migration Act 1958* by providing incorrect information in his protection visa application, and if so, whether the visa should be cancelled. Specifically, the Tribunal had to determine if the applicant had failed to disclose his Pakistani citizenship, provided false information about his brother's death and his father's name, and misrepresented his right to reside in other countries. The Tribunal also considered whether the original grant of the protection visa was based wholly or partly on incorrect information or a bogus document.

The Tribunal found that the applicant had indeed provided incorrect information regarding his brother's death. However, it was not satisfied that the applicant was a Pakistani citizen or that his father's name was as alleged by the Department. Crucially, the Tribunal determined that even if the applicant had provided incorrect information about his family composition, this did not affect the material basis upon which his protection visa was granted. The grant was primarily based on his Hazara ethnicity, Shia faith, and Afghan citizenship, which engaged Australia's non-refoulement obligations. Furthermore, the Tribunal noted that the applicant's mental health issues impacted his capacity to participate meaningfully in proceedings, and that his brothers had previously advised obscuring their relationship to avoid rejection of their protection claims.

Given these findings, the Tribunal exercised its discretion not to cancel the applicant's visa. The decision under review was set aside, and a substituted decision was made not to cancel the applicant's Subclass 155 (Five Year Resident Return) visa.