1935052 (Migration)

The Administrative Appeals Tribunal considered a case involving the cancellation of a Subclass 155 (Five Year Resident Return) visa. The applicant sought review of the delegate's decision to cancel his visa, which was based on alleged incorrect information provided in a previous Subclass 200 visa application. The core of the dispute centred on the applicant's identity and whether he had previously applied for a Subclass 202 visa without disclosing this information.

The Tribunal was required to determine whether the applicant had provided incorrect information in his Subclass 200 visa application, specifically concerning his name and whether he had previously applied for other Australian visas. This involved assessing whether the applicant's correct name was indeed '[Alias 2]' and whether his prior application for a Subclass 202 visa in 2009 constituted a failure to provide correct information under section 101(b) of the Migration Act 1958. The Tribunal also had to consider the principles of public law fraud and whether the applicant was complicit in or indifferent to any fraud committed.

The Tribunal applied the principle that the onus rests on the Minister, or the Tribunal on review, to establish the facts grounding the exercise of a statutory power, such as visa cancellation. It noted that a visa cannot be cancelled simply because a possible ground has been identified and not rebutted by the visa holder. In this instance, the Tribunal found that there was no clear or compelling evidence to establish that the applicant had provided incorrect information regarding his name or his prior visa application. The Tribunal considered the evidence presented by the applicant, including various identity documents and statements, and concluded that the delegate's satisfaction regarding the non-compliance was not sufficiently established.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's Subclass 155 visa and substituted a decision not to cancel the visa.