2305522 (Refugee)

The Administrative Appeals Tribunal reviewed a decision by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 866 (Protection) visa under section 116 of the *Migration Act 1958* (Cth). The applicant, who arrived in Australia in 2010 and was subsequently granted a protection visa, had claimed to be a stateless Faili Kurd who had never held identity documents. The delegate cancelled the visa on the basis that the applicant had provided inconsistent information regarding his identity and that the delegate was not satisfied as to the applicant's identity.

The Tribunal was required to determine whether the ground for cancellation, specifically that the applicant's identity was not established to the satisfaction of the decision maker, was made out. If this ground was established, the Tribunal would then need to consider whether the visa should be cancelled, taking into account all relevant circumstances. A preliminary issue involved a non-disclosure certificate issued by the Department, which prevented the Tribunal from disclosing certain folios to the applicant, though the general contents were disclosed.

The Tribunal found that while the Department had conducted investigations, including an identity and biometrics report that concluded the applicant's identity was not supported and suggested he may have falsified his life story and nationality, it was not satisfied that the ground for cancellation was made out. The delegate's decision was based on inconsistencies in the applicant's claims about identity documents, the discovery of his former wife's Iranian citizenship (casting doubt on their shared claim of statelessness), and evidence suggesting the applicant may have used different names. However, the Tribunal ultimately concluded that the evidence did not sufficiently establish the grounds for cancellation.

Consequently, the Tribunal set aside the delegate's decision to cancel the applicant's visa.