1711207 (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 the father providing incorrect information in his visa application. The applicant contended that the cancellation of their own visa was therefore invalid.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa was lawful, given that the cancellation of the father's visa, which formed the basis for the applicant's cancellation, had itself 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 arise if the underlying cancellation of the sponsor's visa was invalid.

The Tribunal reasoned that if the cancellation of the father's visa was set aside on review, it would be taken never to have occurred. Consequently, any subsequent cancellation of the applicant's visa, which was contingent on the father's visa cancellation, would also be invalid. The Tribunal applied the principle that a consequential decision cannot stand if the decision upon which it is based is found to be invalid. Therefore, the ground for cancelling the applicant's visa did not exist.

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