1904063 (Migration)

This matter concerned an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant's Subclass 155 (Five Year Resident Return) visa under section 116 of the *Migration Act 1958* (Cth). The delegate had cancelled the visa on the basis that the Minister was not satisfied as to the visa holder's identity, pursuant to section 116(1AA) of the Act. The Administrative Appeals Tribunal was tasked with reviewing this cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1AA) of the Act had been established. This required the Tribunal to consider the degree of satisfaction necessary for the Minister to cancel a visa on this ground, and to assess the validity and weight of the evidence presented by the Department. The Tribunal also had to determine the legal effect of a certificate purportedly issued under section 438 of the Act, in circumstances where the decision under review was appealable under Part 5, not Part 7, of the Act.

The Tribunal reasoned that while the common law onus of proof does not apply to administrative decision-making, the gravity of visa cancellation necessitates that grounds for cancellation cannot be made lightly or on inexact proofs. The Tribunal noted that the absence of cross-examination or prior indication that evidence was under challenge could be factors considered. Crucially, the Tribunal found that the certificate presented by the Department, purportedly issued under section 438 of the Act, was invalid because it was unsigned and related to a decision reviewable under a different Part of the Act than that under which the applicant's review was brought. Consequently, the Tribunal was not satisfied that the ground for cancellation under section 116(1AA) had been made out.

As a result of not being satisfied that a ground for cancellation existed, the Tribunal concluded that the power to cancel the applicant's visa did not arise. The Tribunal therefore set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 visa.