2209650 (Refugee)

The Administrative Appeals Tribunal reviewed a decision to cancel the protection visa of an applicant from Iran. The applicant's visa had been cancelled under section 140(2) of the Migration Act 1958 (Cth) because their father's visa had been cancelled under section 109, and the applicant held their visa as a member of the family unit of their father.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa was valid, given the circumstances surrounding their father's visa cancellation. Specifically, the Tribunal had to determine if the condition precedent for cancellation under section 140(2) – that another person's visa is cancelled – still existed.

The Tribunal reasoned that it had earlier set aside the decision to cancel the applicant's father's visa in a separate proceeding. Under section 114 of the Act, if a decision to cancel a visa under section 109 is set aside, the visa is taken never to have been cancelled. Consequently, the basis for cancelling the applicant's visa under section 140(2) no longer existed, as the father's visa was not cancelled. The Tribunal therefore set aside the decision to cancel the applicant's visa and substituted a decision not to cancel their Subclass 866 Protection visa.