2205934 (Migration)

This case concerned an appeal against the cancellation of a Subclass 155 (Five Year Resident Return) visa. The applicant, who arrived in Australia by boat in 2012 and was initially granted a protection visa based on his stated identity as an Afghan citizen born in Iran, had his visa cancelled by a delegate of the Minister. The delegate was not satisfied as to the applicant's identity, citing discrepancies in his name, date and place of birth, family composition, and citizenship, as well as a facial image comparison that matched the applicant to another individual who had been a secondary applicant on a previous humanitarian visa application lodged by his aunt.

The primary legal issue before the court was whether the Minister's delegate was satisfied that the ground for cancellation under section 116(1AA) of the Migration Act 1958 (Cth) was made out, specifically concerning the applicant's identity. This involved determining if there was conflicting information regarding the applicant's identity such that the delegate could not be satisfied as to which, if any, was the true identity. The court was required to consider the various pieces of information presented, including the applicant's initial protection visa application, subsequent requests to amend his date of birth, facial imaging results, information provided in family members' visa applications, and the applicant's own declarations.

The court reasoned that while there were significant discrepancies in the information provided regarding the applicant's identity, including the use of different names, dates of birth, and family details across various applications, these discrepancies did not necessarily lead to the conclusion that the applicant's true identity could not be ascertained. The court noted that the Departmental guidelines indicated that the ground for cancellation under s 116(1AA) is not applicable if a non-citizen has used a false identity to obtain a visa, but their true identity is later confirmed. In this instance, the court found that the applicant had disclosed his correct birth name and that, despite the initial use of a false identity, his true identity had been confirmed. The court also considered that discrepancies in birth dates for Afghan nationals were common due to unreliable record-keeping.

Ultimately, the court concluded that the decision to cancel the applicant's visa should be set aside. The court was satisfied that the applicant was an Afghan national and that his true identity had been confirmed, notwithstanding the initial use of a false identity to obtain his protection visa.