2119363 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an Afghan national. The applicant had arrived in Australia in 2008 and was granted a protection visa in 2009. Subsequently, his step-brothers were granted humanitarian visas based on his claimed relationship as their father. In 2017, during an identity interview, adverse information regarding his identity and family composition was raised. The applicant later provided a statutory declaration admitting to providing incorrect information about his name and family composition in his original protection visa application, stating that the individuals he claimed as his sons were in fact his step-brothers. This led to the Department of Home Affairs issuing a notice of intention to cancel his visa.

The primary legal issue before the Tribunal was whether the applicant's failure to provide correct information in his protection visa application, specifically regarding his name and family composition, constituted a ground for cancellation under the Migration Act 1958 (Cth). The Tribunal was required to determine if the visa grant was based, wholly or partly, on this incorrect information and, if so, whether the visa should be cancelled. The Tribunal also considered the applicant's ethnicity as a Hazara Shia and the historical persecution faced by this group in Afghanistan.

The Tribunal found that the applicant had indeed provided incorrect information regarding his name and family composition in his protection visa application. It accepted that this non-compliance meant the Department was denied the opportunity to conduct full character and security checks before granting the visa. Consequently, the Tribunal concluded that the decision to grant the protection visa was based, in part, on the incorrect information provided. However, the Tribunal also noted that, apart from the identity issue, there was nothing in the material to suggest the visa would not have been granted had the correct information been known, particularly given the applicant's Hazara ethnicity and the ongoing risks faced by this group in Afghanistan. The Tribunal weighed the seriousness of misrepresenting identity against the circumstances of the non-compliance.

The Tribunal set aside the decision to cancel the applicant's protection visa.