1907909 (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the applicant's Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The cancellation was consequential to the cancellation of her husband's, [Mr A], Protection visa. The applicant's visa was cancelled under section 140(2) of the Migration Act 1958, which allows for the cancellation of a visa if another person's visa is cancelled and the applicant holds their visa solely because of that other person.

The primary legal issue before the Tribunal was whether it had jurisdiction to review the cancellation decision and, if so, whether the cancellation was justified. Specifically, the Tribunal needed to determine if the applicant's visa was granted solely on the basis of her husband holding a visa, and if the cancellation of his visa triggered the conditions for cancelling hers under section 140(2). A further issue arose from the Tribunal's previous finding in relation to [Mr A]'s visa cancellation, which was based on allegations of providing incorrect information regarding his fear of returning to Lebanon.

The Tribunal found that it had jurisdiction to review the decision. It then considered the cancellation of [Mr A]'s visa, noting that the delegate's decision to cancel it was based on his returns to Lebanon, which were seen as undermining his claims of fear of harm. However, the Tribunal in [Mr A]'s matter found that while his returns raised doubts, they were not sufficient to establish that he had provided incorrect answers in his visa application. The Tribunal concluded that [Mr A]'s visa was not cancelled due to non-compliance with section 101 of the Act. Consequently, as [Mr A]'s visa was not cancelled, the condition for cancelling the applicant's visa under section 140(2) – that another person's visa is cancelled – was not met.

Therefore, the Tribunal set aside the decision to cancel the applicant's Subclass 100 visa and substituted a decision not to cancel it.