2214195 (Migration)

This matter concerned a review of a decision to cancel the Partner (Migrant) (Class BC) visa, Subclass 100, held by the review applicant. The cancellation was consequential to the cancellation of her husband's visa, which had occurred due to the provision of incorrect information in his visa applications. The Tribunal considered both reviews in a combined hearing.

The primary legal issues before the Tribunal were whether the grounds for cancellation under section 140(2) of the Migration Act 1958 (Cth) were established, and if so, whether the discretion to cancel the applicant's visa should be exercised. The Tribunal was required to determine if the applicant held her visa solely because her husband held a visa that was subsequently cancelled, and to assess the circumstances of the case, including the best interests of the children, in deciding whether to affirm the cancellation.

The Tribunal found that the grounds for cancellation under section 140(2) were established, as the applicant's visa was held only because her husband held a visa that was subsequently cancelled. However, in exercising the discretion to cancel the visa, the Tribunal gave significant weight to the circumstances of the case. These included the applicant's desire to remain in Australia to be with her husband and raise her two Australian-born children, the potential hardship to the applicant and her children if she were required to return to her home country, and the better access to education, healthcare, and career opportunities available in Australia for her children. The Tribunal also noted the applicant's current mental health care plan and the support she received in Australia.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's visa.