2012458 (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 28 July 2020 on the basis that the delegate was not satisfied as to her identity.

The legal issues before the Tribunal were whether the ground for cancellation under section 116(1AA) of the Act was made out, and if so, whether the visa should be cancelled. Section 116(1AA) permits visa cancellation if the Minister or Tribunal is not satisfied as to the visa holder's identity, particularly where inconsistent information has been provided and it is not possible to determine the genuine identity. The Tribunal was required to consider the applicant's submissions, including country information reports regarding identity documentation, citizenship, naming practices in Pakistan, and the situation for Hazara Shi'as in Pakistan, in determining if the cancellation ground was established.

The Tribunal reasoned that the ground for cancellation under section 116(1AA) would not apply if the applicant's true identity had been confirmed, even if a false identity had been used previously. Departmental guidelines indicated this provision is for situations with conflicting identity information where the genuine identity cannot be ascertained. In this case, the Tribunal concluded that it was not satisfied that the ground for cancellation under section 116(1AA) existed.

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.