2209649 (Refugee)

The Administrative Appeals Tribunal considered a dispute concerning the cancellation of a protection visa held by an applicant from Iran. The Minister had cancelled the applicant's visa under section 140(2) of the Migration Act 1958 (Cth) on the basis that the applicant's visa was held as a member of the family unit of their uncle, whose own visa had been cancelled under section 109.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa was valid, given that the basis for the cancellation relied on the prior cancellation of the uncle's visa. Specifically, the Tribunal had to determine the effect of setting aside the cancellation of the uncle's visa on the validity of the applicant's visa cancellation.

The Tribunal reasoned that section 140(2) of the Act permits visa cancellation without notice if another person's visa is cancelled under section 109, and the visa holder only holds their visa because that other person held a visa. However, the Tribunal noted that it had previously set aside the cancellation of the applicant's uncle's visa in a related decision. Pursuant to section 114 of the Act, if a section 109 cancellation is set aside by the Tribunal, the visa is taken never to have been cancelled. Consequently, the Tribunal concluded that the basis for cancelling the applicant's visa under section 140(2) no longer existed.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 866 Protection (Class XA) visa.