2110729 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an applicant who claimed to be an Afghani citizen but was born and had lived his entire life in Pakistan. The applicant had provided incorrect information regarding his name, citizenship, and family composition in his visa application. The Tribunal was satisfied that the delegate had issued a valid notice under section 107 of the Migration Act 1958, detailing the alleged non-compliance with section 101(b) of the Act.

The central legal issue before the Tribunal was whether the applicant's provision of incorrect information in his visa application constituted a failure to comply with the Act, and if so, whether his protection visa should be cancelled. The applicant conceded that he had provided incorrect information, attributing this to his young age at the time of the interview, a lack of understanding of the application process, and familial circumstances. The Tribunal considered certificated information confirming the applicant's correct citizenship.

The Tribunal reasoned that while the applicant had indeed failed to comply with the Act by providing incorrect information, the exercise of discretion regarding visa cancellation required consideration of all relevant factors. The Tribunal placed significant weight on the applicant's young age when he arrived in Australia, the fact that he had provided correct information about his birth and residency in Pakistan, and the real risk of serious harm he faced if returned to Pakistan as a Hazara Shia. Furthermore, the Tribunal noted the possibility of prolonged detention if his visa were cancelled. Applying these considerations, the Tribunal concluded that the applicant's 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 866 (Protection) visa.