1730367 (Migration)

This matter concerned the review of a decision by a delegate of the Minister to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, who had arrived in Australia in 2010 and was granted a protection visa, later received a Subclass 155 visa. The cancellation was initiated due to concerns about the applicant's identity, specifically conflicting information provided regarding his date of birth, time in Iran, education, and employment history. The delegate ultimately cancelled the visa under section 116(1AA) of the Migration Act 1958 (Cth), finding that the applicant's correct identity was not known.

The primary legal issue before the Tribunal was whether the delegate was satisfied that the applicant's identity was not established, thereby giving rise to the power to cancel the visa under section 116(1AA). This required the Tribunal to assess the evidence presented by the applicant in response to the Notification of Intention to Consider Cancellation (NOICC) and determine if the concerns raised by the identity assessor were sufficiently addressed. The Tribunal was also required to consider whether, if grounds for cancellation existed, the visa should be cancelled, weighing the grounds for cancellation against any reasons not to cancel.

The Tribunal found that the applicant was a generally reliable witness regarding his identity and accepted his claimed identity. While acknowledging inconsistencies in the dates of birth recorded on different Afghan taskeras, the Tribunal noted that the book and page number of the birth register were the same across both documents. The Tribunal considered the applicant's explanation for the discrepancies, including his father's actions to avoid military service and the issuance of multiple taskeras over time. Given the applicant's consistent explanation and the provision of original documentation, the Tribunal concluded that the power to cancel the visa under section 116(1AA) did not arise.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa.