Al-Rahmawee (Migration)

This matter concerned an appeal by Mr Murtada al Rahmani against the Department's decision to cancel his Subclass 100 Partner (Migrant) visa. The Administrative Appeals Tribunal was required to determine whether the cancellation of the applicant's visa was valid.

The central legal issue was the application of section 140(2) of the Migration Act 1958 (Cth) in circumstances where a visa had been cancelled under section 140(1) due to the applicant not being a member of a sponsor's family unit, but the sponsor's own visa cancellation had subsequently been set aside. The Tribunal had to consider whether the applicant's visa was, in fact, still deemed to have been cancelled.

The Tribunal reasoned that section 114 of the Migration Act provides that if a decision to cancel a visa under section 109 is set aside by the Tribunal, the visa is taken never to have been cancelled. In this case, the cancellation of Mr al Rahmani's Subclass 155 (Five Year Resident Return) visa had been set aside. Consequently, section 140(2) could not be met because there was no longer a person whose visa had been cancelled. Therefore, the applicant's Subclass 100 visa was deemed not to have been cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 100 visa.