1833889 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Partner (Provisional) (Class UF) visa, Subclass 309. The cancellation was a consequential decision made under section 140(2) of the Migration Act 1958, following the cancellation of the applicant's husband's visa. The applicant contended that the cancellation of her visa was unlawful.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa under section 140(2) was valid. This required the Tribunal to determine if the condition precedent for the exercise of this power, namely the cancellation of the applicant's husband's visa, had been met. The Tribunal also considered the findings of a previous Tribunal decision concerning the applicant's husband's visa.

The Tribunal reasoned that section 140(2) permits the Minister to cancel a visa held by a person who holds that visa "only because" another person holds a visa, if the other person's visa is cancelled. The Tribunal noted that the word "only" signifies that the other person's visa holding was a condition precedent to the grant of the applicant's visa. In this instance, the applicant's visa was cancelled because her husband's visa was cancelled. However, the Tribunal had previously determined in a related matter that the applicant's husband was stateless, as claimed, and that the information he provided in his protection visa application was correct. Consequently, the Tribunal found that there was no non-compliance by the husband, and therefore his visa should not have been cancelled.

Given that the Tribunal had set aside the decision to cancel the applicant's husband's visa, the condition precedent for cancelling the applicant's visa under section 140(2) was not met. Accordingly, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 309 visa.