1915811 (Migration)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The cancellation was based on the delegate's dissatisfaction with the applicant's identity, pursuant to section 116(1AA) of the *Migration Act 1958* (Cth). The applicant had arrived in Australia in 2011 as an illegal maritime arrival and was subsequently granted a Protection visa, followed by a Resident Return visa.

The primary legal issue before the Tribunal was whether the delegate was satisfied that the applicant's identity was unknown, thereby enlivening the power to cancel the visa under section 116(1AA). This required the Tribunal to consider whether the inconsistencies in the information provided by the applicant regarding his identity and family composition were sufficient to prevent the Minister from being satisfied as to his true identity, as contemplated by the Explanatory Memorandum to the *Migration Amendment (Character and General Visa Cancellation) Bill 2014*.

The Tribunal reasoned that while inconsistencies existed in the documentation and information provided by the applicant across various visa applications, particularly concerning his name and family details, these inconsistencies were explained by cultural factors and circumstances beyond the applicant's control. The Tribunal noted Afghan naming practices, where surnames are a fluid concept and not always consistently applied, especially for minors. It was also significant that the applicant was included in a previous visa application as a dependent without his knowledge, and at a young age. The Tribunal found that the applicant's consistent presentation of his identity and life story in his direct dealings with the Department, coupled with explanations for the discrepancies, provided sufficient grounds to be satisfied as to his identity. Therefore, the ground for cancellation under section 116(1AA) was not enlivened.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa.