Al-Rahmawee (Migration)

[2021] AATA 2757

Al-Rahmawee (Migration) [2021] AATA 2757 (22 June 2021)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss Zahraa Murtadha Al-Rahmawee

CASE NUMBER:  1729443

DIBP REFERENCE(S):  BCC2017/4205406

MEMBER:Denis Dragovic

DATE:22 June 2021

PLACE OF DECISION:  Melbourne

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

Statement made on 22 June 2021 at 12:08pm

CATCHWORDS
MIGRATION – cancellation – Subclass 100 Partner (Migrant) visa – cancellation does not apply – applicant granted visa not as member of father’s family unit – dependent upon mother’s partner visa application – applicant’s visa deemed not to have been cancelled – decision under review set aside

LEGISLATION
Migration Act 1958, ss 109, 114, 140(2)

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 378 of the Migration Act 1958 and replaced with generic information.

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 Immigration on 10 November 2017 to cancel the applicant’s Subclass 100 Partner (Migrant) (Class BC) visa under s.140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the visa held by the applicant’s father was cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   Migration History

4. The applicant is the daughter of Mr Murtada al Rahmani and Mrs Azhar Tabarek Mutashar al-Rahmawee. Mr al Rahmani arrived in Australia on 16 April 2010. [Details deleted]. The visa was granted by the Department on 13 April 2011. On 30 December 2012 Mr al Rahmani applied as the sponsor for a Partner visa with his wife as the primary applicant and children, including the applicant, as secondary applicants. The Partner visa was granted on the 1 October 2013.

5. Mr Murtada al Rahmani’s [visa] was cancelled on 6 November 2017. As the applicant obtained her original visa and subsequent subclass 100 visa because her father held a permanent visa, s.140(2) was triggered and the consequential cancellation of the applicant’s visa by the Department on the 10 November 2017.

   The Law

6. Section 140 of the Act reads:

   Cancellation of visa results in other cancellation

   (1) If a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.

   (2) If:

   (a) a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

   (b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

7. The applicant’s visa was cancelled under s.140(2) as opposed to s.140(1) which did not apply as the applicant was granted a visa not because she was a member of her father’s family unit but because she was a dependent upon her mother’s partner visa application which in turn was granted based upon the applicant’s father sponsoring the partner visa.

   CONSIDERATION

8. Mr Murtada al Rahmani appealed the Department’s cancellation to the Tribunal. A decision was made on the 10 June 2021 to set aside the cancellation of his visa and substitute a decision not to cancel his Subclass (155) (Five Year Resident Return) visa.

9. Pursuant to s.114, if a decision made under s.109 to cancel a person’s visa is set aside by the Tribunal, then the visa is taken never to have been cancelled.

10. The decision to set aside the cancellation of Mr Murtada al Rahmani’s visa means that section 140(2) is not met in the applicant’s case as there is no person whose visa was cancelled. As such the applicant’s visa is deemed not to have been cancelled.

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 visa.

    Denis Dragovic
    Senior Member