2300686 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on allegations that the applicant had provided incorrect information in his earlier application for a Protection visa, specifically claiming to be a stateless Rohingya fearing persecution in Burma (Myanmar) when he was, in fact, a citizen of Bangladesh.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with section 101(b) of the Migration Act 1958 by providing incorrect answers in his Protection visa application. This alleged non-compliance related to his claims of citizenship, statelessness, and fear of harm from Burmese and Bangladeshi authorities. The Tribunal was required to determine if the evidence presented established that the applicant was a documented Bangladeshi citizen at the time of his Protection visa application, thereby rendering his statements incorrect.

The Tribunal reasoned that the onus of establishing the facts grounding the cancellation power rested with the Minister, and on review, with the Tribunal. While the applicant had provided documentation such as a National Identity Card and Bangladesh passports, the Tribunal was not satisfied that this documentation definitively proved he was a Bangladeshi citizen. The Tribunal also considered the gravity of the consequences of a cancellation decision, requiring a cautious evaluation of the factual foundation. Ultimately, the Tribunal concluded that it was not satisfied that the applicant had provided incorrect information in the manner described in the Notice of Intention to Consider Cancellation.

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