1905867 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant had initially arrived in Australia in 2010 and was granted a Protection visa, later obtaining a Subclass 155 visa in 2016. The cancellation was based on the Minister's delegate being unsatisfied as to the applicant's identity, citing inconsistencies in identity documents and statements provided across various visa and citizenship applications lodged since 2011.

The primary legal issue before the Tribunal was whether the ground for cancellation under section 116(1AA) of the Migration Act 1958 (Cth) was made out. This provision allows for visa cancellation if the Minister, or the Tribunal on review, is not satisfied as to the visa holder's identity. The Tribunal was required to determine if the conflicting information regarding the applicant's identity was such that it was impossible to form a conclusion as to which, if any, was the true identity, and whether the onus of establishing this ground rested with the Minister.

The Tribunal reasoned that while the applicant had provided inconsistent information regarding his identity across several applications, including claims of being stateless and indicating Iraqi citizenship at different times, these inconsistencies did not necessarily mean his true identity could not be ascertained. The Tribunal noted that the Explanatory Memorandum for section 116(1AA) indicated its application where it is not possible to form a conclusion regarding which document or piece of information is genuine. However, departmental guidelines suggest this ground is not applicable if a person's true identity is later confirmed, even if a false identity was initially used. Crucially, the Tribunal held that the onus of establishing the facts that ground the exercise of a statutory power, such as visa cancellation, rests with the Minister. In this instance, the Tribunal found that the applicant's initial grant of a Protection visa, based on a favourable assessment of his claims as a stateless Iraqi refugee, and his consistent claims regarding his circumstances and family, weighed against the conclusion that his identity was fundamentally unascertainable. The Tribunal also considered the significant distress and hardship caused by the delay in processing the applicant's family and citizenship applications due to the cancellation.

Consequently, the Tribunal set aside the decision to cancel the applicant's Subclass 155 visa and substituted a decision not to cancel the visa.