Kio (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of the applicant, Mr Kio. The cancellation was based on the Minister's dissatisfaction with the applicant's identity, a ground for cancellation under section 116(1AA) of the Migration Act 1958 (Cth). The concerns regarding the applicant's identity arose from a departmental assessment flagging his name within a cohort suspected of identity fraud, leading to a Notice of Intention to Consider Cancellation (NOICC).

The Tribunal was required to determine whether the grounds for cancellation under section 116(1AA) were made out, specifically whether the Minister was satisfied as to the visa holder's identity. The NOICC raised several points of concern, including discrepancies in the applicant's name, the names of his children, his claimed place of birth and residence, his claimed period of employment as a farmer, and his claimed years of primary education. Further concerns were raised regarding the second applicant's (the wife's) identity, including a potential instance of her adopting another person's identity and conflicting information on social media about her education and place of origin.

The Tribunal found that many of the concerns raised by the delegate lacked a substantial evidentiary basis or were explained by the applicants in a credible manner. For instance, the Tribunal noted that the applicants' inability to provide identity documents from Myanmar was due to ongoing conflict and a lack of functioning government in their home region. Crucially, the Tribunal contacted the Victorian Registry of Births, Deaths and Marriages and confirmed that no Myanmar documents were submitted for the applicant's name change, undermining the delegate's assumption that such documents had been provided. Discrepancies in children's names and the applicant's educational history were found to be minor or irrelevant to the core question of identity. Concerns arising from social media posts were also discounted, with the Tribunal emphasising the unreliability of self-reported information and the potential for children to create incomplete profiles. The Tribunal concluded that there was no credible and cohesive evidence to support a real state of satisfaction that the grounds for cancellation existed.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the first named applicant's visa. The Tribunal noted that it had no jurisdiction with respect to the other applicants.