2209688 (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, born in Iran, arrived in Australia in 2011 as a minor. His father had previously applied for a Protection visa on his behalf, listing him as a dependent applicant, which was granted based on claims of statelessness. The applicant later applied for Australian citizenship, which was refused, and subsequently obtained the Resident Return visa that was later cancelled. The review was heard alongside separate reviews for other family members.

The primary legal issue before the Tribunal was whether the applicant's visa should be cancelled under section 109 of the Migration Act 1958, following a notice issued under section 107 of the Act. The notice alleged non-compliance with section 101(b) of the Act, specifically that the applicant's father had provided incorrect information in the initial Protection visa application by claiming the family were stateless Faili Kurds, when subsequent information suggested they were Iranian citizens. The Tribunal was required to determine if this non-compliance occurred and, if so, whether the visa should be cancelled, considering all relevant circumstances.

The Tribunal found that while the applicant's father had provided incorrect information in the Protection visa application, and the section 107 notice complied with statutory requirements, the visa should not be cancelled. The Tribunal reasoned that the applicant had contributed to the Australian community during his childhood and early adulthood, a factor weighing in favour of not cancelling the visa. Crucially, the Tribunal considered the profound impact the cancellation would have on the applicant's younger Australian citizen brother, whose entire immediate family would face detention if the applicant's visa remained cancelled. This consideration, along with the preservation of family unity, weighed significantly in favour of the visa not being cancelled.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 155 visa and substituted a decision not to cancel it.