2012459 (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 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 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. This ground is typically applicable when inconsistent information is provided regarding a person's identity, making it impossible to determine which information is genuine. The Tribunal was required to consider the evidence presented by both the applicant and the delegate, including information regarding the applicant's claimed Afghan citizenship, her family's claims, and the nature of identity documentation provided.

The Tribunal reasoned that section 116(1AA) is intended to apply where there is conflicting information about a visa holder's identity, and the decision-maker cannot be satisfied as to which identity is true. Departmental guidelines indicate that 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, the Tribunal found that the applicant's true identity had been confirmed. Consequently, the Tribunal concluded that the ground for cancellation under section 116(1AA) did not exist, and therefore the power to cancel the visa did not arise.

Accordingly, 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.