1908976 (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 visa was cancelled under s 140(2) of the Migration Act 1958 (Cth) because his father's protection visa had been cancelled under s 109 of the Act for providing incorrect information. The applicant's partner visa was granted on the basis of his relationship with his father, who had been granted a protection visa. The Tribunal was constituted by Alison Murphy.

The primary legal issues before the Tribunal were whether the ground for cancellation under s 140(2) of the Act was made out in respect of the applicant, and if so, whether the applicant's 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 s 140(2) appeared to have been enlivened at the time the applicant's visa was cancelled, this was predicated on the cancellation of his father's protection visa. Crucially, the Tribunal had previously set aside the decision to cancel the applicant's father's protection visa. Pursuant to s 114 of the Act, if a decision to cancel a visa under s 109 is set aside, the visa is taken never to have been cancelled. Applying this principle and relevant Departmental policy, the Tribunal concluded that a consequential cancellation under s 140(2) would also be taken never to have been cancelled. Therefore, the power to cancel the applicant's visa under s 140(2) was not enlivened.

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