Tribunal: Member C Smolicz
The AAT found that, while the applicant had provided incorrect and incomplete information in his protection visa application, having regard to all the relevant circumstances, the visa should not be cancelled. The decision was set aside under review and substituted with a decision to not cancel the visa.
The applicant arrived in Australia from Afghanistan in early 2010. He was granted a protection visa as he would be harmed in Afghanistan because of his ethnicity and religion. In 2018, the Department of Home Affairs (the Department) cancelled the applicant’s protection visa on the basis that he had given incorrect and incomplete information in his application.[1] Non-citizens are required to provide correct information in their visa applications and passenger cards, not to provide bogus documents and they must notify the Department of any incorrect information that they become aware of and any relevant change in circumstances.[2] Failing to do so may result in a person’s visa being cancelled.[3]
In this case, the AAT had to decide whether there were grounds for cancelling the applicant’s visa and, if so, whether it should be cancelled.
The AAT found that the applicant had provided incorrect and incomplete information in his protection visa application about his name and aliases, whether he had applied for refugee status in any other country, his family composition and his date of birth. On this basis, it found there were grounds to cancel the visa.
The AAT then needed to consider whether the visa should be cancelled. Among the factors considered, the AAT reviewed the evidence given by the applicant, including his admission to providing incorrect information, and found that, while there were mitigating factors, there was no justifiable excuse for providing false information in his protection visa application.
The AAT then considered the consequences of cancelling the applicant’s visa and found that he would become an unlawful non-citizen and could be detained and removed from Australia. The AAT found that the applicant’s failure to disclose his real name, date of birth and family composition were not directly relevant to the granting of the protection visa. The AAT considered country information on the current security situation in Afghanistan and found that the applicant continued to have a well-founded fear of persecution in Afghanistan for the reasons of his religion and ethnicity, and that his removal from Australia would breach Australia’s obligations under international law.
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