2300230 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the Protection visa of an applicant who arrived in Australia in 2010 claiming to be a stateless Faili Kurd from Iraq. The applicant, who had been granted a Protection visa in 2011 based on these claims, later applied for Australian citizenship on two occasions, providing inconsistent information regarding her identity and background. This led to the Department of Home Affairs issuing a Notice of Intention to Consider Cancellation under section 116 of the *Migration Act 1958* (Cth), citing concerns about her identity.

The primary legal issue before the Tribunal was whether the Minister was satisfied that the ground for cancellation under section 116(1AA) of the *Migration Act* was made out, specifically whether the Minister was not satisfied as to the visa holder's identity. Section 116(1AA) permits visa cancellation if there is inconsistent or contradictory information regarding a person's identity, preventing the Minister from forming a conclusion as to their true identity. Departmental guidelines indicate that this provision is not intended to apply if a fraudulent identity was used to obtain a visa but the true identity is later confirmed, or if the visa holder satisfies the delegate as to their true identity.

The Tribunal found that while the applicant had provided inconsistent and incorrect evidence about her background over many years, she had acknowledged this misinformation, apologised, and explained it in the context of duress and threats from a former partner. She also presented evidence of her fears of harm if returned to Iran and the existence of her Australian citizen children, supported by letters from her psychologist and general practitioner. The Tribunal noted that while other grounds for cancellation might be considered, the circumstances of her children, history of domestic violence, mental health, and significant time in Australia were relevant factors. Ultimately, the Tribunal concluded that the power to cancel the visa under section 116(1AA) did not arise in this instance.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 (Protection) visa.