2119364 (Migration)

The Administrative Appeals Tribunal (AAT) considered a decision to cancel the Partner (Provisional) (Class UF) visa, Subclass 309, held by the applicant, an Afghan national. The applicant's visa was cancelled under s.140(2) of the Migration Act 1958 (Cth) because her husband's protection visa had been cancelled under s.109 of the Act on the grounds of providing incorrect information. The applicant's partner visa was granted based on her spousal relationship with her husband, who held a protection visa.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's partner visa remained valid, given that the decision to cancel her husband's protection visa had subsequently been set aside. The Tribunal was also required to consider the validity of a certificate issued under s.375A of the Act, which purported to restrict the disclosure of certain documents to the applicant.

The Tribunal reasoned that 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 in accordance with Departmental Policy Guidelines, the Tribunal determined that a consequential cancellation of a partner visa under s.140(2), based on the cancellation of a spouse's protection visa, should also be treated as if it never occurred if the underlying cancellation is set aside. As the applicant's husband's protection visa was taken never to have been cancelled, the ground for cancelling the applicant's partner visa under s.140(2) was no longer made out. The Tribunal also found the s.375A certificate to be invalid, as it was not satisfied that the stated public interest reasons for non-disclosure were met.

The Tribunal set aside the decision to cancel the applicant's visa and substituted a decision not to cancel her Subclass 309 visa. Additionally, the Tribunal made a direction under s.378 of the Migration Act 1958 prohibiting the publication of information that would identify the applicant or her family members, due to privacy concerns.