2000781 (Migration)

This matter concerned the review of a decision to cancel the applicant's Subclass 155 (Five Year Resident Return) visa. The applicant, who arrived in Australia in 2012 and was granted a protection visa, had subsequently been issued with a resident return visa. The Department of Home Affairs formed the view that the applicant had provided incorrect information in his initial protection visa application, specifically regarding his name, date of birth, visa history, family composition, and relatives in Australia. This view was informed by a forensic facial image comparison report and a biometric information comparison report, which suggested the applicant was the same person as an individual named [Alias 1] included in a 2010 humanitarian visa application. The applicant was issued with a Notification of Intention to Consider Cancellation under s 107 of the *Migration Act 1958* (Cth), to which he responded with submissions and supporting documentation. The Administrative Appeals Tribunal (AAT) conducted the review.

The primary legal issue before the Tribunal was whether the applicant had failed to comply with s 101 of the *Migration Act 1958* (Cth) by providing incorrect answers in his protection visa application, as alleged by the Department. This question turned on whether the applicant could be considered to have "made" the application in which his details were allegedly misrepresented, or whether the information provided was given on his behalf without his knowledge or intent to deceive, particularly given he was a minor at the time of the earlier humanitarian visa application. The Tribunal was required to determine if the evidence established non-compliance with the Act, which would then engage the Minister's power to cancel the visa under s 109.

The Tribunal found that the applicant had not provided incorrect information in his protection visa application in the manner described in the s 107 notice. It reasoned that while a facial image comparison suggested the applicant was the same person as [Alias 1] in a previous humanitarian visa application, the applicant was a minor at the time of that application and did not personally "make" it. The Tribunal accepted the applicant's submissions, supported by statutory declarations from himself and his cousin, and other documentary evidence, that he was unaware of the earlier application and had not knowingly provided false or misleading information. Consequently, the Tribunal concluded that the ground for cancellation under s 107 was not made out, and the discretionary power to cancel the visa did not arise.

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