1908971 (Migration)

This matter concerned the review of a decision to cancel the applicant's Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The applicant's husband had his Subclass 866 protection visa cancelled under s 109 of the Act for providing incorrect information. Consequently, the applicant's partner visa was cancelled under s 140(2) of the Act, as she held the visa only because her husband held a valid visa. However, a subsequent review by the Tribunal set aside the cancellation of the husband's protection visa.

The primary legal issue before the Tribunal was whether the ground for cancellation under s 140(2) of the Act remained enlivened in respect of the applicant, given that the underlying cancellation of her husband's visa had been set aside. If the ground was enlivened, the Tribunal also had to consider whether the applicant's visa should be cancelled.

The Tribunal reasoned that s 114 of the Act provides that if a decision to cancel a visa under s 109 is set aside, the visa is taken never to have been cancelled. While the Act does not expressly address the impact of this on a consequential cancellation under s 140(2), the Tribunal referred to Departmental Policy Guidelines which indicate that a consequential s 140 cancellation would also be treated as if it never occurred. Applying this principle, the Tribunal concluded that the power to cancel the applicant's visa under s 140(2) was not enlivened because the cancellation of her husband's visa had been set aside.

Accordingly, the Tribunal set aside the decision under review and substituted a decision that the applicant's Subclass 100 (Spouse) visa should not be cancelled.