Ali (Migration)

The Administrative Appeals Tribunal considered a migration matter involving an applicant whose Subclass 155 (Five Year Resident Return) visa was subject to cancellation. The ground for cancellation was that the applicant had provided incorrect information in a previous visa application, specifically by stating that her mother was deceased when she was, in fact, alive.

The Tribunal was required to determine whether the applicant had failed to comply with a condition of her visa, as alleged by the Department. Crucially, the Tribunal also had to consider whether, in the exercise of its discretion, the visa should be cancelled, taking into account all relevant circumstances.

In its reasoning, the Tribunal acknowledged the applicant's non-compliance, noting that she had provided incorrect information in her prior visa application. However, the Tribunal weighed this against several mitigating factors. These included the applicant's minor age at the time of the original application, the significant passage of time since the non-compliance, her established settlement within the community, and the considerable hardship she would face if her visa were cancelled. The Tribunal also took into account the unsafe situation in Afghanistan and the absence of any support for the applicant in her home country. Applying these considerations, the Tribunal concluded that the 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 155 (Five Year Resident Return) visa.