Bibi (Migration)

The Administrative Appeals Tribunal (AAT) considered the cancellation of a Subclass 155 (Five Year Resident Return) visa held by the applicant, Bibi. The Department of Home Affairs had cancelled the visa on the ground that the applicant had provided incorrect information in a previous visa application concerning her family composition. The applicant sought review of this cancellation decision.

The primary legal issue before the Tribunal was whether the applicant's Subclass 155 visa should be cancelled, despite the finding of non-compliance. This required the Tribunal to consider the exercise of its discretion under section 107 of the Migration Act 1958 (Cth), which allows the Tribunal to substitute a decision not to cancel a visa if it is satisfied that, having regard to all the relevant circumstances, the visa should not be cancelled. The Tribunal also had to consider whether the incorrect information provided was relevant to any visa criteria and the potential hardship to the applicant, including any non-refoulement obligations.

The Tribunal reasoned that while there was a finding of non-compliance due to incorrect information regarding family composition, this information was not relevant to the criteria for the grant of the visa itself. The Tribunal noted that the fraud, if any, was perpetrated by family members and that the applicant's own circumstances and the degree of hardship she would face if her visa were cancelled were significant factors. The Tribunal also considered the applicant's background as a Shia Hazara, which may engage non-refoulement obligations.

Ultimately, the Tribunal concluded that, having regard to all the relevant circumstances, the visa should not be cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 155 visa.