1711203 (Migration)

This matter concerned an application for review of a decision to cancel the applicant's Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The cancellation of the applicant's visa was a consequence of the cancellation of the visa held by the applicant's father, Mr A, due to the provision of incorrect information in his visa application. The applicant sought to have the cancellation of their own visa set aside.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa was valid, given that the cancellation of Mr A's visa had subsequently been set aside on review. The Tribunal was required to determine if the discretionary power to cancel the applicant's visa under section 140(2) of the Migration Act 1958 (Cth) could validly be exercised when the underlying cancellation of the sponsor's visa was no longer in effect.

The Tribunal reasoned that section 109 of the Act permits the Minister to cancel a visa if the visa holder has failed to comply with certain provisions, including section 101, which requires the provision of correct information in visa applications. The Tribunal found that the notice issued under section 107 of the Act, detailing Mr A's alleged non-compliance with section 101(b) by providing incorrect answers regarding his fear of authorities in Uzbekistan, was valid. However, the Tribunal noted that Mr A's visa had been cancelled as a result of this non-compliance. Crucially, the Tribunal then considered the effect of Mr A's subsequent review, which resulted in his visa cancellation being set aside. The Tribunal concluded that if Mr A's visa was never validly cancelled, then any consequential cancellation of the applicant's visa under section 140(2) would also be taken never to have occurred.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 100 (Spouse) visa, on the basis that the discretionary power to cancel the applicant's visa did not arise due to the invalidity of the sponsor's visa cancellation.