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Tribunal: Member James Silva

The Administrative Appeals Tribunal (AAT) set aside a decision by a delegate of the Minister for Immigration (the Department) and substitutes a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

The applicant had arrived in Australia by boat in 2009 without documentation as an Irregular Maritime Arrival. He sought and was granted a protection visa in 2010 on the basis of claims that he was stateless and faced systemic persecution in Iran.

The applicant’s protection visa was cancelled in 2018 because he was shown to have provided incorrect information in his application form and the seriousness of his non-compliance was deemed to outweigh circumstances in favour of non-cancellation. In response to the Department’s Notice of Intention to Consider Cancellation, the applicant had admitted that he had misrepresented himself as being stateless rather than as being an Iranian citizen. After the Department cancelled his protection visa, he applied to the AAT for review of the decision.

The AAT heard from the applicant that, prior to arriving in Australia, he had chosen to rely on advice that he conceal his nationality in order to enhance his prospects of securing a protection visa. He conceded that the grounds for cancellation were made so the issue for the Tribunal was whether the visa should be cancelled.

The applicant had been joined by his wife and daughter in 2013. He provided evidence that they were a well-integrated family and that he contributed to his community in Australia. The family, who now reside together, later welcomed a son who was born in Australia. The elder daughter was enrolled at university in Australia.

The AAT accepted the Department’s concerns about the seriousness of the applicant’s misrepresentations, and about his credibility and conduct. However, the Tribunal found that a primary consideration is the best interests of the son for the visa not to be cancelled and placed significant weight on this consideration. In exercising its discretion, the Tribunal also considered other factors that weighed in favour of not cancelling the visa, including that the applicant was employed, had a stable family life, and that there would have been significant negative consequences for his wife and daughter if the visa was cancelled.

Read the full decision