Tahira (Migration)

This matter concerned the cancellation of a Partner (Migrant) (Class BC) Subclass 100 visa granted to the applicant, Tahira, sponsored by her partner, Mr Zahir Azimi. The delegate initiated cancellation proceedings under section 107 of the Migration Act 1958 (Cth) on the basis that the applicant had provided incorrect or incomplete information in her visa application regarding her identity, citizenship, family composition, residence, and a previous humanitarian visa application. Contradictory information had also emerged from visa applications made by her family members. The applicant maintained her original information and did not concede non-compliance.

The Tribunal was required to determine whether the delegate had reached the necessary state of mind to engage section 107 and whether the notice issued complied with statutory requirements. Further, the Tribunal considered the applicant's circumstances, including her physical and mental health, her family and community ties in Australia, and the best interests of her Australian citizen children, in exercising its discretion regarding visa cancellation. The Tribunal also considered the potential for the applicant's separation from her husband and the implications of non-refoulement in light of country information concerning Hazara Shia individuals.

The Tribunal found that the delegate had properly engaged section 107 and that the notice issued was statutorily compliant. However, the Tribunal noted significant discrepancies in the information provided by the applicant and her family members across various visa applications. These included the applicant's inclusion in a previous refused Global Special Humanitarian visa application under a different name and date of birth, and conflicting statements regarding the citizenship and origins of her brother, Rehmat, who had arrived in Australia under a different identity. Furthermore, information obtained from Mr Azimi's mother and sister indicated he had travelled to Australia using a Pakistani passport and was born in Quetta, Pakistan, contradicting the applicant's stated information. The Tribunal concluded that the decision to cancel the visa was made without a hearing, which was deemed necessary in the circumstances.

Consequently, the Tribunal set aside the decision under review. The Tribunal determined that the cancellation of the applicant's visa was not justified, particularly considering the best interests of her Australian citizen children and the potential separation from their father. The Tribunal also noted that the visa would likely have been granted even with the information that emerged.