Al-Yaseen (Migration)

[2018] AATA 5659

Al-Yaseen (Migration) [2018] AATA 5659 (4 December 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Rana Ali Saleh Al-Yaseen
Ms Zahraa Saleem Abdulhussein Alkazar
Mr Abbas Saleem Alkazar

CASE NUMBER:  1718568

DIBP REFERENCE(S):  BCC2017/1346698

BCC2017/1346766

BCC2017/1346736

MEMBER:Meena Sripathy

DATE:4 December 2018

PLACE OF DECISION:  Sydney

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

Statement made on 04 December 2018 at 9:56am

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Partner) – primary visa cancelled – members of the family unit – primary visa holder’s cancellation set aside – decision under review set aside    

LEGISLATION

Migration Act 1958, ss 109, 114, 140, 360

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 to cancel the applicants’ Class BC Subclass 100 (Partner) visa under s.140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visas on 8 August 2017 on the basis that the applicants held their visas only because another person whose visa was cancelled held a visa.  As the applicants were granted a Partner visa because Saleem Algzar was granted a visa and Saleem Algzar’s visa was cancelled on 8 August 2017, the applicants’ visas were also cancelled.

3. Mr Saleem Algzar sought review of the decision to cancel his visa to the Administrative Appeals Tribunal and the matter was considered in a separate review (AAT case ref. 1717810). 

4. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

5. On 3 December 2018 the Tribunal made a decision to set aside the decision under review in AAT case 1717810 and substitute a decision not to cancel Mr Saleem Algzar’s visa under s109 of the Act.  In light of that decision, the Tribunal is satisfied that Mr Algzar’s visa is taken, pursuant to s114 of the Act, never to have been cancelled and therefore there is no basis for the consequential cancellation of the applicants’ visas under s140 and the decisions to cancel the applicants’ visas should be set aside on the basis that they are taken never to have been cancelled.

6. The Tribunal observes that this is consistent with Department policy[1] which, also citing s114(1) of the Act, states explicitly that a consequential s140 cancellation would also be set aside in the same manner as the s109 cancellation. That is, any visa that was consequentially cancelled under s140 would be taken to never have been cancelled.

   [1] Departmental Policy General visa cancellation powers (s109, s116, s128, 134B and s140), Procedural Instructions, Cancellation decisions, Set Aside of s109 cancellation decisions : >

   The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicants’ Subclass 100 (Partner) visas.

   Meena Sripathy
   Member