Aljawareen (Migration)

[2019] AATA 4514

Aljawareen (Migration) [2019] AATA 4514 (23 July 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maseera Essa Hussein Aljawareen

CASE NUMBER:  1812472

DIBP REFERENCE(S):  BCC2018/1588642 OSF2012/005173

MEMBER:Alison Murphy

DATE:23 July 2019

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 (Spouse) visa.

Statement made on 23 July 2019 at 10:55am

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – husband’s resident return visa cancellation set aside – applicant’s spouse visa taken never to have been cancelled – decision under review set aside         

LEGISLATION

Migration Act 1958, ss 109, 114, 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 to cancel the applicant’s Subclass 100 (Spouse) visa under s.140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant’s husband, who had sponsored her for the partner visa, had subsequently had his resident return visa 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. The applicant was represented in relation to the review by her registered migration agent.

   Background

4. The applicant is a 36 year old female from Iraq. Her husband Jasim Mohammed Aljorani was granted a class 866 protection visa on 21 November 2011 and subsequently granted a resident return visa. The applicant applied for a partner visa on 23 December 2012 on the basis of her spousal relationship with her husband. She was granted the visa on 29 April 2013 and arrived in Australia together with her children on 29 June 2013.

5. On 9 April 2018 a delegate of the Minister made a decision to cancel the applicant’s husband’s resident return visa pursuant to s.109 of the Act on the basis that he had provided incorrect information in his protection visa application. As the applicant was granted a visa only because her husband had been granted a protection visa (and subsequently a resident return visa) and her husband’s visa was subsequently cancelled, it was determined that there were grounds for cancellation of the applicant’s partner visa under s.140(2) of the Act and a decision was made to cancel her partner visa on 11 April 2018.

6. On 21 June 2019 I set aside the decision to cancel the applicant’s husband’s resident return visa, not being satisfied that he gave incorrect information in his protection visa application (AAT case number 1810282).

7. For the following reasons, I consider I should decide the review in the applicant’s favour without inviting the applicant to appear before the Tribunal.

   CONSIDERATION OF EVIDENCE

8. Subsection 140(2) of the Act provides that the Minister may, without notice, cancel a visa where:

   ·another person’s visa is cancelled under ss.109 (incorrect information), 116, 128, 133A, 133C or 137J (student visas); and

   ·the visa holder, to whom s.140(1) does not apply, holds a visa only because the person whose visa is cancelled held a visa.

9. In this case I am satisfied that the applicant held a partner visa only because her husband held a protection visa (and later a resident return visa). The delegate’s decision records that the applicant’s partner visa was cancelled under s.140(2) because her husband’s resident return visa was cancelled under s.109.

10. It would appear then that at the time of the decision to cancel the applicant’s visa, the ground for cancellation existed under s.140(2). However I set aside the cancellation of the applicant’s husband’s resident return visa on 21 June 2019.

11. 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. Further the Department’s Policy Guidelines relevantly state:

    Set aside of s109 cancellation decisions

    Section 114(1) of the Act states that if a s109 cancellation is set aside by the Federal Court, Federal Circuit Court, the AAT, the visa is taken never to have been cancelled.

    The Act does not expressly set out how this affects any consequential s140 cancellation. It is policy, however, 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.

12. In these circumstances I consider it appropriate to set aside the decision to cancel the applicant’s visa under s.140(2) on the basis that her husband’s visa is taken never to have been cancelled.

    DECISION

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

    Alison Murphy
    Member

    
    

    ATTACHMENT – Migration Act 1958 (extracts)

    Section 114 Effect of setting aside decide to cancel visa

    (1)  If the Federal Court, the Federal Circuit Court or the Administrative Appeals Tribunal sets aside a decision under section 109 to cancel a person's visa, the visa is taken never to have been cancelled.

    (2)  In spite of subsection (1), any detention of the non-citizen between the purported cancellation of the visa and the decision to set aside the decision to cancel is lawful and the non-citizen is not entitled to make any claim against the Commonwealth or an officer because of the detention.

    Section 140 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;

    the Minister may, without notice to the other person, cancel the other person's visa.

    (3)  If:

    (a)  a person's visa (the cancelled visa) is cancelled under any provision of this Act; and

    (b)  the person is a parent of another person; and

    (c)  the other person holds a particular visa (the other visa), that was granted under section 78 (child born in Australia) because the parent held the cancelled visa;

    the other visa is also cancelled.

    (4)  If:

    (a)  a visa is cancelled under subsection (1), (2) or (3) because another visa is cancelled; and

    (b)  the cancellation of the other visa is revoked under section 131, 133F, 137L or 137N;

    the cancellation under subsection (1), (2) or (3) is revoked.