2108796 (Migration)

The Administrative Appeals Tribunal considered an application by an Iraqi citizen, Faili Kurd, concerning the cancellation of his Subclass 155 (Five Year Resident Return) visa. The dispute arose from alleged incorrect answers provided in a previous protection visa application, specifically regarding his citizenship. The applicant claimed he was unaware of his Iraqi citizenship at the time, as his father had registered the family in Iraq shortly before their departure from Iran, a fact later confirmed by Iraqi authorities.

The Tribunal was required to determine whether the applicant had failed to comply with a condition of his visa, and if so, whether the discretion to cancel the visa should be exercised. In making this determination, the Tribunal had to consider all relevant circumstances, including the applicant's ties to Australia, his family situation, and the potential consequences of cancellation.

In its reasoning, the Tribunal acknowledged the applicant's study, work, and family and community ties in Australia, as well as his Australian citizen wife and child. It noted that the applicant could not apply for a partner visa onshore. The Tribunal also took into account the wife's mental health and treatment, the best interests of the child who considered the applicant his primary caregiver, and the possibility of indefinite detention and non-refoulement concerns given the applicant had never lived in Iraq. Applying these considerations, 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.