Alishirvani (Migration)

[2018] AATA 5504

Alishirvani (Migration) [2018] AATA 5504 (16 November 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Masumeh Alishirvani

CASE NUMBER:  1818453

DIBP REFERENCE:  BCC2015/3513625

MEMBER:Rosa Gagliardi

DATE:16 November 2018

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the cancellation and substitutes the decision that the applicant’s subclass 100 Partner visa not be cancelled.

Statement made on 16 November 2018 at 6:28pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – consequential cancellation – decision to cancel husband’s visa quashed – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 109, 140

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 4 January 2016 to cancel the applicant’s Subclass 100 Partner (Migrant) (Class BC) visa under s.109 of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the visa should be cancelled consequentially to her husband’s visa cancellation. 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. The applicant is represented in relation to the review by her registered migration agent.

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

   CONSIDERATION OF CLAIMS AND EVIDENCE

5. The delegate cancelled the visa on the basis that her husband’s, Hashem Hawasi’s, visa was cancelled on 25 November 2015. As a consequence on 4 January 2016, the applicant’s visa was also cancelled pursuant to s.140(2) of the Migration Act 1958.

6. On 27 April 2016 the Tribunal differently constituted affirmed the decision of the Department to cancel the applicant’s visa. However, by a writ of certiorari issued by Justice Nettle of the High Court on 22 February 2018, her husband’s cancellation decision was quashed. Hence, on 18 June 2018, the Federal Circuit Court of Australia found that in the circumstances, one of the criteria for the exercise of power under s.140(2) was not satisfied, and the Tribunal therefore had no power to cancel the applicant’s visa under s.140(2) and the Tribunal ought not to have affirmed the decision under review.

   DECISION

7. The Tribunal sets aside the cancellation and substitutes the decision that the applicant’s subclass 100 Partner visa not be cancelled.

   Rosa Gagliardi
   Member