1701026 (Refugee)

This matter concerned an application to review the decision to cancel the applicant's protection visa. The applicant, an unauthorised maritime arrival from Afghanistan, had been granted a protection visa. The Minister's delegate sought to cancel this visa under section 116(1AA) of the Migration Act 1958 (Cth) on the grounds that the delegate was not satisfied as to the applicant's identity. The Administrative Appeals Tribunal (AAT) considered the evidence presented by the applicant and the Department regarding their identity.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1AA) of the Act was made out. This section permits visa cancellation if the Minister or the Tribunal is not satisfied as to the visa holder's identity, with an example given in the Explanatory Memorandum of inconsistent identity documents where a definitive conclusion cannot be reached. The Tribunal was required to assess the extensive documentation and interview records provided by the applicant and gathered by the Department, including applications for various visas and citizenship, and identity interviews.

The Tribunal found that the ground for cancellation under section 116(1AA) was not satisfied. While acknowledging the delegate's extensive review of the applicant's identity information, the Tribunal ultimately concluded that the evidence did not support a finding that the applicant's identity was not established. Crucially, the Tribunal then considered the exercise of discretion regarding the cancellation. It noted that the delegate appeared not to have followed the guidance provided in the Department's Procedures Advice Manual (PAM3) concerning matters that should be considered when deciding whether to cancel a visa. The PAM3 outlines ten matters, including the purpose of travel, compliance with visa conditions, hardship to the visa holder, circumstances of the ground for cancellation, behaviour towards the department, mandatory legal consequences, and Australia's international obligations, which are designed to afford fairness to a visa holder. The Tribunal expressed concern that the delegate had not properly considered these matters.

The Tribunal decided to set aside the decision to cancel the applicant's visa. This outcome was based on the finding that the ground for cancellation under section 116(1AA) was not established, and also on the procedural concern that the delegate had failed to properly consider the discretionary factors outlined in the PAM3 when deciding whether to exercise the power of cancellation.