1908218 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse), held by the applicant. The cancellation was based on an allegation that the applicant failed to disclose other names he had been known by, specifically an alias, in his visa application, thereby contravening section 101(a) of the Migration Act 1958. The Tribunal considered evidence including a forensic facial image examination suggesting the applicant and an individual using the alias were the same person, the interception of a Ghanaian passport in the alias's name addressed to the applicant's former residence, and anonymous allegations of identity fraud involving the applicant and his cousin.

The primary legal issue before the Tribunal was whether the notice of intention to consider cancellation (NOICC) issued to the applicant was valid and provided sufficient particulars of the alleged non-compliance. The Tribunal was required to determine if the applicant had indeed failed to comply with section 101(a) of the Act by not disclosing the alleged alias, and if the NOICC adequately informed the applicant of the basis for the proposed cancellation, enabling him to respond effectively. The Tribunal also considered the applicant's response, which denied using any aliases and suggested his documents may have been misused.

The Tribunal found that the NOICC of 20 December 2018 was valid, as the delegate had formed the necessary state of mind and provided a basis for the alleged non-compliance. However, the Tribunal concluded that the particulars provided in the NOICC were not sufficient to fairly inform the applicant of the basis upon which cancellation was being considered. While acknowledging the concerns raised by the evidence, including the facial image comparison and the intercepted passport, the Tribunal found that the evidence did not establish with sufficient certainty that the applicant had used the alias or that the anonymous allegations were reliable. The Tribunal noted that the Ghanaian Consulate confirmed that passport applications are processed in Ghana, and did not comment on the authenticity of the applicant's passport based on a scanned copy.

Consequently, the Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel it. The Tribunal noted that further investigations might be warranted and that if more concrete evidence emerged, the Department could consider cancellation on other grounds in the future.