1825729 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of an Afghan national. The applicant, who arrived in Australia in 2010 and was granted a protection visa, had his visa subsequently considered for cancellation under section 116(1AA) of the Migration Act 1958 (Cth) due to concerns about his identity. The delegate was not satisfied as to the applicant's identity, citing various inconsistencies in documentation and information provided throughout his interactions with the Department.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1AA) of the Act, namely that the Minister is not satisfied as to the visa holder's identity, was made out. This required the Tribunal to consider the definition of "identity" in the context of migration law, including the "three pillars of Identity" (documents, information, and biometrics), and to assess whether the applicant's true identity could be established despite conflicting information.

The Tribunal considered the applicant's explanations for the discrepancies, including the use of a false passport under an alias to travel to Australia and to apply for a visa to another country, as well as the circumstances surrounding the acquisition of his Tazkira. It also took into account oral evidence from the applicant's father and brother, who corroborated aspects of his identity and family history. The Tribunal accepted the applicant's explanation that the passport under the name [Alias 2] was a false document arranged by his brother to facilitate a visa application for safety, and that it was not used for any other purpose. Furthermore, the Tribunal found the applicant's explanation for obtaining his 2009 Tazkira to be credible, noting that it was consistent with other documents and his family history. The Tribunal was ultimately satisfied as to the applicant's identity as [the applicant], born in [Year 1], son of [Mr A given name], and therefore concluded that the ground for cancellation under section 116(1AA) was not established.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa and substituted a decision not to cancel the visa.