2209650 (Refugee)

[2023] AATA 3387

2209650 (Refugee) [2023] AATA 3387 (7 August 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Ms Anna Joyce Ryburn

CASE NUMBER:  2209650

COUNTRY OF REFERENCE:                   Iran

MEMBER:Sean Baker

DATE:7 August 2023

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 Protection (Class XA)  visa.

Statement made on 07 August 2023 at 1:03pm

CATCHWORDS
REFUGEE – cancellation – protection visa – Iran – applicant’s father’s visa was cancelled under s 109 – a member of the family unit of his father – the other person’s visa is not cancelled and the basis for the cancellation does not exist – decision under review set aside   

LEGISLATION

Migration Act 1958, ss 109, 114, 140

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 431 of the Migration Act 1958 and replaced with generic information which does not allow the identification of an applicant, or their relative or other dependants.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Home Affairs on 30 June 2022 to cancel the applicant’s Subclass 866 Protection (Class XA) visa under s 140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant had held the visa only because his father had held a visa, and the visa of his father had been cancelled, enlivening s 140(2). The delegate had considered discretionary factors before concluding that the visa should be cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 20 July 2023 to give evidence and  present arguments. The Tribunal also received oral evidence from the applicant’s parents and cousin. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review.

4. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. Section 140(2) of the Act allows the Minister to cancel a visa , without notice, if another person’s visa is cancelled under s 109 and the visa holder only holds a visa because the person whose visa is cancelled held a visa.

6. In this case, the applicant’s father’s visa was cancelled under s 109. The applicant held his protection visa on the basis of being a member of the family unit of his father, who at that time held a protection visa.

7. On this basis, the delegate found the ground for cancellation under s 140(2) existed, weighed discretionary factors, and decided to cancel the applicant’s visa.

8. Earlier today on 7 August 2023 in case 2209648, I set aside the cancellation of the applicant’s father’s visa, for the reasons expressed in that decision.

9. Pursuant to s 114, if a decision made under s 109 to cancel a person’s visa is set aside by the Tribunal, then the visa is taken never to have been cancelled.

10. It follows that the decision to cancel the applicant’s visa under s 140(2) must also be set aside on the basis that the other person’s visa is not cancelled and the basis for the cancellation does not exist.

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 866 Protection (Class XA)  visa.

    Sean Baker
    Member