2104797 (Migration)

The Administrative Appeals Tribunal considered the cancellation of a Subclass 155 (Five Year Resident Return) visa held by the applicant, who had previously been granted a Protection (Subclass 866) visa. The dispute arose after the Department of Home Affairs ascertained that the applicant had provided incorrect information regarding his identity, including his name, date of birth, and previous visa applications, when seeking protection. This led to the cancellation of his protection visa and subsequently, his resident return visa.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirement to provide correct information under section 101 of the Migration Act 1958 (Cth) in relation to his resident return visa application, and if so, whether the discretionary power to cancel that visa under section 109 of the Act should be exercised. The Tribunal was required to consider the prescribed circumstances under regulation 2.41 of the Migration Regulations 1994, as well as other relevant factors, in determining whether to uphold the cancellation.

The Tribunal reasoned that while the applicant had indeed provided incorrect information, which constituted non-compliance with section 101, the subsequent correction of this information in response to a notice of intention to cancel his protection visa was a relevant factor in exercising the discretion under section 109. The Tribunal considered the prescribed circumstances, including the applicant's ethnicity and religion as Hazara Shia, the credible evidence establishing his identity, and the fact that he was born to refugees in a third country and had lost his refugee status upon departing. The Tribunal found that the applicant's subsequent behaviour and the circumstances surrounding his initial claims were such that the decision to cancel his resident return visa should be set aside.