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 the applicability of section 140 of the Migration Act 1958 (Cth) to the applicant's situation. Specifically, the Tribunal had to ascertain whether the applicant's visa was cancelled under section 140(1) or 140(2), and the consequences of a decision to set aside a cancellation under section 114 of the Act.

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. Consequently, section 140(1) did not apply. The Tribunal found that the cancellation was purportedly made under section 140(2). However, a prior decision had already set aside the cancellation of the applicant's visa. Pursuant to section 114, if a visa cancellation decision is set aside by the Tribunal, the visa is deemed never to have been cancelled. Therefore, section 140(2) could not be met as there was no person whose visa was cancelled.

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