1711205 (Migration)

This matter concerned an application by a visa holder for review of a decision to cancel their Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The cancellation of the applicant's visa was a consequence of the cancellation of their father's visa, which had been based on allegations of incorrect information provided in his visa application. The dispute before the Tribunal was whether the cancellation of the applicant's visa was valid, given subsequent developments regarding the father's visa.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa was lawful, particularly in light of the fact that the cancellation of the sponsor's (father's) visa had been set aside on review. This raised the question of whether a visa cancelled as a consequence of another visa's cancellation could stand if the original cancellation was later invalidated. The Tribunal was required to consider the effect of the sponsor's visa cancellation being taken never to have occurred on the consequential cancellation of the applicant's visa.

The Tribunal reasoned that the cancellation of the applicant's visa was predicated on the cancellation of their father's visa. As the decision to cancel the father's visa was set aside on review and deemed to have never occurred, the basis for the cancellation of the applicant's visa was removed. Consequently, the discretionary power to cancel the applicant's visa did not arise, as the ground upon which it was purportedly cancelled no longer existed.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 100 (Spouse) visa.