1719725 (Refugee)

The Administrative Appeals Tribunal considered a decision to cancel the protection visa of a male applicant who claims to be from Afghanistan. The applicant arrived in Australia in October 2010 and was subsequently granted a protection visa in October 2011. In April 2016, a delegate of the Minister issued a Notification of Intention to Consider Cancellation (NOICC), proposing to cancel the visa on the grounds that the delegate was not satisfied as to the applicant's identity. This dissatisfaction arose from inconsistencies in the information provided by the applicant regarding his age, marital status, and family composition at various stages, including his initial arrival, entry interview, protection visa application, citizenship application, and social media presence.

The primary legal issue before the Tribunal was whether the delegate had established grounds for cancelling the applicant's protection visa under section 116(1AA) of the Migration Act 1958 (Cth), which requires the Minister to be satisfied that a visa holder has provided information that is false or misleading, or that the visa holder is not who they claim to be. This involved assessing the credibility of the applicant's various statements about his identity and determining whether the inconsistencies were sufficient to warrant cancellation.

The Tribunal reasoned that while the applicant had provided conflicting information about his identity at different times, he had explained these discrepancies by attributing them to the advice of people smugglers and his young age upon arrival. Crucially, the applicant had subsequently provided corrected information and supporting documentation, including a statutory declaration and a letter from the Afghan Embassy, in response to the NOICC. The Tribunal found that the applicant had acknowledged providing incorrect information initially but had corrected it shortly thereafter, and that the Department had accepted the corrected information. The Tribunal was ultimately not satisfied that the applicant's identity was other than as claimed, and therefore concluded that the ground for cancellation under section 116(1AA) had not been established.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 866 (Protection) visa and substituted a decision not to cancel the visa.