Abouhamzeh (Migration)

[2023] AATA 4866

Abouhamzeh (Migration) [2023] AATA 4866 (13 December 2023)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Saeedeh Abouhamzeh

CASE NUMBER:  2203962

HOME AFFAIRS REFERENCE(S):          BCC2022/827283

MEMBER:Meena Sripathy

DATE:13 December 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 100 Partner (Migrant) (Class BC) visa.

Statement made on 13 December 2023 at 4:13pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – consequential cancellation – primary visa not cancelled – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 109, 114, 140

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 11 March 2022 to cancel the applicant’s Subclass 100 Partner (Migrant) (Class BC) visa under s140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant held her visa only because another person whose visa was cancelled held a visa.  As the applicant was granted a Partner visa because Mr Rassoul Solhjoo was granted a visa and Mr Rassoul Solhjoo’s visa was cancelled on 11 March 2022, the applicant’s visa was also cancelled.

3. Mr Rassoul Solhjoo sought review of the decision to cancel his visa to the Administrative Appeals Tribunal and the matter was considered in a separate review (AAT case ref.2203961). 

4. The applicant appeared before the Tribunal on 23 August 2023 to give evidence and present arguments. 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 and the representative attended the hearing.

5. On 13 December 2023 the Tribunal decided to set aside the decision under review in AAT case 2203961 and substitute a decision not to cancel Mr Rassoul Solhjoo’s visa under s109 of the Act.  In light of that decision, the Tribunal is satisfied that Mr Rassoul Solhjoo’s visa is taken, pursuant to s114 of the Act, never to have been cancelled and therefore there is no basis for the consequential cancellation of the applicant’s visa under s140.  The decision to cancel the applicant’s visa should be set aside on the basis that it is taken never to have been cancelled.

6. The Tribunal observes that this is consistent with Department policy[1] which, also citing s114(1) of the Act, states explicitly that a consequential s140 cancellation would also be set aside in the same manner as the s109 cancellation. That is, any visa that was consequentially cancelled under s140 would be taken to never have been cancelled.

   [1] Departmental Policy General visa cancellation powers (s109, s116, s128, 134B and s140), Procedural Instructions, Cancellation decisions, Set Aside of s109 cancellation decisions : >

   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 Partner (Migrant) (Class BC) visa.

   Meena Sripathy
   Member