1912992 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, who arrived in Australia in 2011 and was granted a protection visa under the name "[the applicant]", later applied for Australian citizenship. During integrity checks for the citizenship application, the Department matched the applicant's facial images to records associated with the name "[Alias 1]", who had been included in previous visa applications with a different date of birth and family details. This discrepancy led to a notification of intention to cancel the applicant's protection visa on the grounds that the delegate was not satisfied as to his identity.

The primary legal issue before the Tribunal was whether the applicant's identity was sufficiently established to prevent the cancellation of his visa under section 116 of the Migration Act 1958 (Cth). Specifically, the Tribunal had to determine if the inconsistencies in the applicant's provided information, including different names, dates of birth, family members, and supporting documents across various visa applications, warranted a finding that he was not of the identity he claimed. This involved assessing the credibility of the applicant's explanation for the discrepancies and the weight to be given to the Department's integrity checks.

The Tribunal found that the applicant's explanation for the differing identities was credible. The applicant provided evidence that his birth name was changed after a childhood illness, a practice he stated was consistent with Afghan cultural beliefs aimed at promoting recovery. He also explained that he adopted his great-grandfather's name as a surname upon arrival in Australia, as his family did not traditionally use surnames. The Tribunal accepted that the applicant had been known by two names and that the inconsistencies in his previous visa applications, including the use of a different taskera document, were due to a combination of these name changes, incorrect information provided by people smugglers, and a lack of understanding of Australian visa application requirements. Consequently, the Tribunal was satisfied as to the applicant's identity, meaning the ground for cancellation under section 116(1AA) of the Act was not made out.

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.