1818455 (Migration)

[2020] AATA 138

1818455 (Migration) [2020] AATA 138 (28 January 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  1818455

MEMBER:Justine Clarke

DATE:28 January 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 Partner (Provisional) (Class UF) visa.

Statement made on 28 January 2020 at 5:09pm

CATCHWORDS
MIGRATION – cancellation – Partner (Provisional) (Class UF) visa – Subclass 309 (Partner (Provisional)) – consequential cancellation – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 116, 140, 360

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 15 June 2018 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 309 Partner (Provisional) (Class UF) visa under s.140(2) of the Migration Act 1958 (the Act).

2. The applicant provided the Tribunal with a copy of the primary decision. As the delegate explained, s.140(2) of the Act states that where a person’s visa is cancelled under ss.109, 116, 128, 133A, 133C or 137J of the Act and another person, to whom subsection (1) does not apply, holds a visa only because the person whose visa is cancelled held a visa, then the Minister may cancel the other person’s visa without notice. The delegate explained the grounds for cancellation in the following terms:

   [The applicant] was granted a visa only because [Mr A] was granted a visa. As [Mr A]’s visa was cancelled on 14 June 2018, I am satisfied there is a ground for cancellation under subsection 140(2)[.]

3. On 15 November 2019, the Tribunal (differently constituted) set aside the decision dated 14 June 2018 made by a delegate of the Minister to cancel [Mr A]’s Subclass 866 (Protection) visa under s.116 of the Act: AAT reference 1818318.[1]

   [1]        A corrigendum was made on 27 November 2019.

4. The current matter was constituted to the presiding Member in this case on 22 January 2020.

5. On 28 January 2019, the Tribunal checked the movement records and the ICSE records for both the applicant and [Mr A]. Copies of the results are on the Tribunal’s file. The ICSE records for [Mr A] evidence him as holding a Protection (Class XA) Subclass 866 visa with the status date of 16 November 2019.  

6. Pursuant to s.360(2)(a) of the Act, the Tribunal considers that it should decide the review in the applicant’s favour on the basis of the material before it.

7. The reason for the delegate’s cancellation of the visa no longer exists.

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 309 Partner (Provisional) (Class UF) visa.

   Justine Clarke
   Member