2106937 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of their Subclass 155 (Five Year Resident Return) visa. The dispute arose from alleged non-compliance with sections 101(a) and (b) of the *Migration Act 1958* (Cth) during the applicant's previous protection visa application. Specifically, the applicant had provided incorrect information regarding their name and country of citizenship, stating they were from Afghanistan and had left in 1980, when in fact they were a Pakistani national born in Quetta, Pakistan. The decision was made by Sean Baker, a Member of the Tribunal.

The primary legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of section 101 of the Act by providing incorrect information in their protection visa application, and if so, whether the cancellation of their subsequent Resident Return visa was the appropriate course of action. The Tribunal was required to determine if the notice issued under section 107 of the Act adequately particularised the alleged non-compliance and whether the delegate had properly engaged the cancellation power under section 109.

The Tribunal found that the delegate had reached the necessary state of mind to engage section 107 and that the notice issued complied with statutory requirements. It was satisfied that the applicant had indeed provided incorrect information regarding their name and citizenship in their protection visa application, constituting non-compliance with sections 101(a) and (b). However, after considering all relevant circumstances, including the applicant's fear of persecution, indefinite immigration detention, and mental health condition, 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 (Five Year Resident Return) visa.