Al-Rahmawee (Migration)

The Administrative Appeals Tribunal considered an appeal by Mr Murtada al Rahmani concerning the cancellation of his Subclass 100 Partner (Migrant) visa. The dispute centred on whether the cancellation decision was valid, given the circumstances under which the applicant's visa was initially granted.

The primary legal issue before the Tribunal was to determine whether the applicant's Subclass 100 visa had been validly cancelled. This required the Tribunal to consider the application of section 140 of the Migration Act 1958 (Cth), specifically whether the applicant's visa was granted as a member of his father's family unit or as a dependent upon his mother's partner visa application.

The Tribunal reasoned that the applicant's visa was granted not as a member of his father's family unit, but as a dependent on his mother's partner visa application, which was sponsored by the applicant's father. Crucially, a prior decision had already set aside the cancellation of Mr Murtada al Rahmani's Subclass 155 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. Therefore, as there was no person whose visa was cancelled in this context, section 140(2) was not met.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 100 visa, deeming it not to have been cancelled.