Aljawareen (Migration)

This matter concerned the review of a decision to cancel the applicant's Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The applicant's visa was cancelled under s 140(2) of the Migration Act 1958 (Cth) because her husband's resident return visa had been cancelled under s 109 of the Act due to the provision of incorrect information in his protection visa application. The applicant's partner visa was granted on the basis of her spousal relationship with her husband. The Administrative Appeals Tribunal (AAT) was the court that heard this matter.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's partner visa remained valid, given that the cancellation of her husband's resident return visa, which formed the basis for the applicant's visa cancellation, had subsequently been set aside by the Tribunal. The Tribunal was required to consider the effect of s 114 of the Migration Act 1958 (Cth) on a visa cancellation made under s 140(2) when the underlying visa cancellation is revoked.

The Tribunal reasoned that pursuant to s 114 of the Act, if a decision to cancel a visa under s 109 is set aside, the visa is taken never to have been cancelled. While the Act does not expressly address the impact of this on a consequential cancellation under s 140(2), the Tribunal applied Departmental Policy Guidelines which stipulate that a consequential s 140 cancellation would also be set aside in the same manner as the s 109 cancellation. Therefore, the applicant's partner visa was taken never to have been cancelled. The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 100 (Spouse) visa.