2202433 (Migration)

This matter concerned an appeal by a visa holder against the cancellation of his Subclass 155 (Five Year Resident Return) visa. The cancellation was initiated by the Department of Home Affairs on the basis that the applicant had provided incorrect information in his original protection visa application. Specifically, the Department alleged that the applicant had incorrectly stated he did not hold any other citizenship, that his citizenship at birth was Afghanistan, that he had no right to enter or reside in another country, and that he feared harm in Afghanistan and Pakistan. These allegations stemmed from the Department's belief, based on documents provided for his wife's partner visa application, that the applicant was a citizen of Pakistan.

The legal issues before the Tribunal were whether the applicant had failed to comply with the requirements of the *Migration Act 1958* (Cth) by providing incorrect answers in his protection visa application, and consequently, whether the Minister's delegate had the power to cancel his visa under section 109 of the Act. The Tribunal was required to determine if the evidence, particularly the Pakistani marriage and birth certificates and the verification of the applicant's Pakistani National Identity Card (NIC) number by NADRA, conclusively established that the applicant was a Pakistani citizen at the time of his protection visa application, thereby rendering his answers incorrect.

The Tribunal found that while the Pakistani authorities had confirmed the genuineness of the marriage and birth certificates and that the applicant's NIC number was issued to him, this did not definitively prove he was a Pakistani citizen at the time of his protection visa application. The Tribunal noted that a Pakistani NIC could be obtained through an agent using false information and a bribe, and that the applicant had provided an Afghan taskera with his citizenship application. Crucially, the Tribunal was not satisfied that the applicant had provided incorrect information in his protection visa application as alleged in the section 107 notice. Therefore, the prerequisite for the cancellation power under section 109 of the Act had not been met.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel the Subclass 155 (Five Year Resident Return) visa.