Al-Rahmawee (Migration)

This matter concerned an appeal by Mr Murtada al Rahmani against the Department's cancellation of 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 of the Migration Act 1958 (Cth) concerning visa cancellations. Specifically, the Tribunal had to consider whether the applicant's visa was cancelled under section 140(1) or 140(2), and the consequences of a prior decision to set aside a cancellation of a related visa.

The Tribunal reasoned that the applicant's Subclass 100 visa was granted not as a member of his father's family unit, but as a dependent on his mother's partner visa application. Crucially, a separate decision had been made to set aside the cancellation of Mr al Rahmani's Subclass (155) Five Year Resident Return visa. Pursuant to section 114 of the Migration Act, if a visa cancellation decision is set aside by the Tribunal, the visa is deemed never to have been cancelled. Consequently, the condition in section 140(2) – that a person's visa was cancelled – was not met in the applicant's case.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 100 visa, meaning the visa was deemed not to have been cancelled.