1913180 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the Subclass 155 (Five Year Resident Return) visa of an applicant who claimed to be an Afghan national. The applicant had arrived in Australia in 2011 seeking protection and was subsequently granted a protection visa and later the Subclass 155 visa. The cancellation was initiated due to concerns about the applicant's identity, stemming from a match between his photograph and that of an applicant for a global special humanitarian visa under a different name, [Mr C].

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 ground requires the Minister to be satisfied that the visa holder is not of the identity claimed. The delegate had concluded that the contradictory information regarding the applicant's identity and the lack of credible identity documents meant they could not be satisfied as to his true identity.

The Tribunal considered significant new evidence not available to the delegate. This included sworn evidence from witnesses who knew the applicant since childhood, corroborating his claimed identity and family composition. Crucially, the Tribunal accepted the applicant's explanation that his photograph was included in the earlier global humanitarian visa application by a family friend, [Mr A], as a well-intentioned but misguided attempt to help him migrate under his friend's brother's name, [Mr C], due to the applicant's vulnerable circumstances. The Tribunal found this explanation credible, supported by [Mr A]'s own testimony and a range of other identity documents, including an Afghan passport, letters of identity, and an absentee taskera, all of which confirmed the applicant's identity as [applicant name] born [Date 1]. The Tribunal concluded that the ground for cancellation under section 116(1AA) did not exist because it was satisfied as to the applicant's true identity.

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