2012456 (Migration)

This matter concerned an application for review of a decision by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 155 (Five Year Resident Return) visa. The applicant, who arrived in Australia in December 2009 as an Unlawful Maritime Arrival and was subsequently granted a Protection visa, had her Resident Return visa cancelled under s 116(1AA) of the Migration Act 1958 (Cth) on the basis that the delegate was not satisfied as to her identity. The applicant sought review of this cancellation decision.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 116(1AA) of the Act was made out. This provision allows for visa cancellation if the Minister or Tribunal is not satisfied as to the visa holder's identity, particularly where inconsistent information has been provided. The Tribunal was required to determine if the applicant had failed to provide reliable documentation to confirm her true identity, as contended by the delegate, or if her true identity had been confirmed despite initial inconsistencies.

The Tribunal reasoned that s 116(1AA) is applicable when there is conflicting information regarding a visa holder's identity, and the decision-maker cannot be satisfied as to which identity is genuine. However, departmental guidelines indicate this ground is not applicable if a person's true identity is later confirmed, even if a false identity was initially used. In this case, while the applicant's mother had provided inconsistent information regarding her identity and submitted a copy of an Afghan identification certificate, the Tribunal found that the ground for cancellation under s 116(1AA) was not established. Consequently, the power to cancel the applicant's visa did not arise.

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.