1723716 (Migration)

The applicant sought review of a decision to cancel her Return (Residence) (Class BB) visa, subclass 155 (Five Year Resident Return) visa. The dispute centred on whether the grounds for cancellation under section 116(1AA) of the Migration Act 1958 (Cth) were made out. The court was required to determine if the Minister was satisfied that the applicant's identity was not established, and if the Tribunal could consider grounds for cancellation other than those relied upon by the original delegate.

The court considered the evidence presented, including an Identity Report which highlighted numerous discrepancies in the applicant's account of her family composition, travel history, and the authenticity of a marriage certificate. The delegate's decision to cancel the visa was based on section 116(1AA), which permits cancellation if the Minister is not satisfied as to the visa holder's identity. However, the Tribunal noted that the applicant had conceded providing incorrect information about her family and that the marriage certificate might be bogus. Crucially, the Tribunal found that the cancellation did not arise from a lack of satisfaction as to the applicant's identity, but rather from issues related to incorrect information and potentially fraudulent documentation. The Explanatory Memorandum and departmental guidelines indicate that section 116(1AA) applies only when there is conflicting information about a person's identity, and a conclusion cannot be reached as to which is genuine, not when a person has used a false identity but their true identity is later confirmed.

The Tribunal further addressed whether it could consider cancellation on a different basis from the delegate. While acknowledging that a tribunal is not strictly limited to the delegate's considerations, it found that departing from the specific ground on which the visa was cancelled carried a risk of legal error. In this instance, the visa was cancelled under section 116(1AA) concerning identity, but the evidence and the Tribunal's findings pointed towards issues of incorrect information or bogus documents, which are grounds for cancellation under different provisions. Therefore, the power to cancel the visa under section 116(1AA) did not arise. The decision under review was set aside.