1932265 (Migration)

The applicant, an Iraqi citizen, sought review of the delegate's decision to cancel her Subclass 155 (Five Year Resident Return) visa. The delegate had found that the applicant had provided incorrect information in her protection visa application, specifically by failing to declare a previous humanitarian visa application made under a different name, sponsored by an Australian citizen husband. This previous application was allegedly linked to the applicant through forensic facial comparison and fingerprint evidence. The delegate concluded that Australia had no non-refoulement obligations to the applicant and that the grounds for cancellation outweighed any reasons not to cancel.

The Tribunal was required to determine whether the applicant had provided incorrect information in her visa application, thereby breaching section 101 of the Migration Act 1958, and if so, whether the visa should be cancelled. This involved assessing the evidence presented by both the applicant and the Department regarding the applicant's identity and her previous interactions with the Department. The applicant contended that the Department had mistakenly identified her with another individual, [Ms E], and that the previous application was made by [Ms E] and not by her.

The Tribunal considered extensive documentary and witness evidence, including the applicant's statement, medical reports, and various Iraqi identity documents. The applicant argued that she had never married the sponsor, [Mr F], and that any travel to third countries, such as [Country 3], was for medical treatment and to visit her sister, not for travel to Iraq. She provided evidence suggesting a significant difference in the birth dates of her mother and the mother of [Ms E], and other documents intended to prove her distinct identity. The Tribunal found that the fingerprint evidence linking the applicant to the previous application was incontrovertible, despite the applicant's claims and the submission of various documents. However, the Tribunal also noted evidence suggesting the applicant had travelled to third countries, not her home country, and was accompanied by a male relative. Crucially, the Tribunal found that the applicant suffered from significant physical and mental health issues, including major depression with psychotic disorder, and had been hospitalised multiple times.

The Tribunal set aside the delegate's decision to cancel the applicant's visa and substituted a decision not to cancel the visa.