2012457 (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 under section 116 of the *Migration Act 1958* (Cth). The applicant, who had arrived in Australia in 2009 and was subsequently granted a Protection visa and later a Resident Return visa, had her visa cancelled 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 section 116(1AA) of the Act, namely that the Minister or Tribunal is not satisfied as to the visa holder's identity, was made out. If this ground was established, the Tribunal then had to consider whether, in all the relevant circumstances, the visa should be cancelled.

The Tribunal reasoned that section 116(1AA) applies where there is inconsistent information regarding a visa holder's identity, and the decision-maker cannot be satisfied as to which information 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 own identity and the applicant's claimed background, the Tribunal concluded that the ground for cancellation under section 116(1AA) was not established. Consequently, the power to cancel the 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.