1908923 (Migration)

This matter concerned a review of a decision to cancel the applicant's Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The applicant's visa had been cancelled under section 140(2) of the Migration Act 1958 (Cth) because her father's protection visa had been cancelled under section 109 of the Act for providing incorrect information. The applicant's Subclass 100 visa was granted on the basis of her relationship with her father, who had been granted a protection visa. The review was heard by Alison Murphy of the Administrative Appeals Tribunal.

The primary legal issues before the Tribunal were whether the ground for cancellation under section 140(2) of the Act was made out in respect of the applicant, and if so, whether her visa should be cancelled. The Tribunal was required to consider the effect of a subsequent decision to set aside the cancellation of the applicant's father's protection visa on the cancellation of the applicant's own visa.

The Tribunal reasoned that while the ground for cancellation under section 140(2) appeared to have been enlivened at the time the applicant's visa was cancelled, this was predicated on the cancellation of her father's protection visa. Crucially, the Tribunal had previously set aside the decision to cancel the applicant's father's protection visa. Pursuant to section 114 of the Act, if a decision to cancel a visa under section 109 is set aside, the visa is taken never to have been cancelled. The Tribunal noted that while the Act does not expressly address the impact of this on consequential section 140 cancellations, it was the Department's policy that such consequential cancellations would also be set aside. Applying this principle, the Tribunal concluded that the power to cancel the applicant's visa under section 140(2) was no longer enlivened.

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