2104126 (Migration)

This matter concerned an appeal to the Tribunal regarding the cancellation of the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on allegations that the applicant had provided incorrect answers in her visa application and submitted fraudulent identity documents, specifically relating to her claimed Afghan nationality and race, the Hazara. The delegate had rejected the applicant's claims, finding it implausible that certain family members could have been included as minors in identity documents prepared for a great-grandfather, and noting inconsistencies in claims about bribes paid for inclusion in family compositions.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with sections 101 and 103 of the Migration Act 1958 (Cth) by providing incorrect information about her nationality and submitting a bogus document. The Tribunal was required to determine if these grounds for cancellation were established, and if so, whether there were compelling reasons to exercise discretion not to cancel the visa. The Tribunal noted that the circumstances leading to the cancellation of the applicant's visa were the same as those for her mother, and therefore relied on the detailed findings made in the mother's separate case.

The Tribunal found that the applicant, like her mother, was a national of Pakistan and not Afghanistan, and had therefore provided an incorrect answer regarding her country of nationality, constituting a non-compliance with section 101. Furthermore, the Tribunal found that the applicant's tazkera was a bogus document, meaning she had provided a bogus document with her application and failed to comply with section 103. Despite these findings of non-compliance, the Tribunal placed significant weight on the applicant's status as a minor at the time the application was made, concluding she would not have been involved in or influenced the provision of incorrect answers or bogus documents. The Tribunal also considered it to be in the applicant's best interests to remain with her parents, who held Australian permanent visas or citizenship, and that she could not live independently.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 visa, finding that the best interests of the child weighed against cancellation.