1916387 (Migration)

The Administrative Appeals Tribunal considered a case involving the cancellation of a Subclass 155 (Five Year Resident Return) visa. The applicant's visa had been cancelled by a delegate on the grounds that the delegate was not satisfied as to the applicant's identity. The central dispute was whether this ground for cancellation was made out and, if so, whether the visa should ultimately be cancelled.

The legal issues before the Tribunal were whether the delegate was correct in being unsatisfied as to the applicant's identity, and if that ground for cancellation was established, whether the visa should be cancelled. The Tribunal was required to determine the meaning of "identity" in the context of section 116(1AA) of the Migration Act 1958, considering the Department's guidelines and policy regarding the assessment of identity, which includes documents, life story information, and biometrics. The Tribunal also had to consider whether the applicant had provided inconsistent or contradictory information regarding their identity, and if so, whether this prevented the delegate from forming a conclusion about their true identity.

The Tribunal reasoned that section 116(1AA) applies when there is conflicting information about a person's identity, making it impossible to determine which information is genuine. The Department's policy requires decision-makers to have a level of confidence that the applicant is who they claim to be. In this instance, the Tribunal was satisfied as to the applicant's identity. The applicant had previously provided inconsistent information across various visa applications, including differing names, dates of birth, and family compositions. However, the Tribunal found that the applicant's half-brother had included the applicant under the name of a deceased full brother in a humanitarian visa application, without the applicant's knowledge. The Tribunal concluded that the applicant's family relationships and documentation, particularly concerning their relationship with their father and half-brother in Australia, supported their current identity.

Consequently, the Tribunal found that the ground for cancellation under section 116(1AA) was not made out because it was satisfied as to the applicant's identity. The Tribunal therefore set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 155 visa.