Tribunal: Senior Member Kate Millar

The Department of Home Affairs (the Department) cancelled the applicant’s Partner visa because they were not satisfied as to his identity. The applicant applied to the AAT for a review of this decision.

The applicant arrived in Australia in 2010 and was granted a Partner visa on the basis that he was a member of the family unit of a woman who he claimed was his sister. In 2013, the applicant changed his name and applied for Australian Citizenship in 2014. The applicant requested an urgent conferral ceremony so he could visit his sick mother, which conflicted with evidence he provided in his visa application that his mother’s whereabouts were unknown. This raised concerns and after conducting searches, the Department found that the applicant had used his recently changed name on Facebook in 2009.

The Department may cancel a visa if not satisfied as to the visa holder’s identity.[1] There were a number of concerns surrounding the applicant’s identity and the AAT attempted to establish his identity through multiple avenues including DNA tests, which the applicant did not undertake, and other identity documents. The AAT was left with the impression that the applicant was obstructing attempts to establish his identity. The AAT found it could not rely on the evidence before it and concluded that it was not satisfied as to the applicant’s identity.

In this situation, making this finding does not automatically result in mandatory visa cancellation. The decision-maker must then consider whether the visa should be cancelled by considering all the applicant’s circumstances. The applicant claimed there were compelling reasons for him to remain in Australia, including a risk to his safety if he returned to Afghanistan. The AAT found that this claim could be properly tested through an application for a Protection visa.

After considering all the circumstances of the case, the AAT concluded that the visa should be cancelled and affirmed the Department’s decision.

Read the full decision on AustLII.

 

[1] Section 116(1AA) of the Migration Act 1958.