Aljorani (Migration)

This matter concerned the review of a decision to cancel the Subclass 100 (Spouse) visa of a 13-year-old applicant from Iraq. The applicant's visa had been cancelled under s.140(2) of the *Migration Act 1958* (Cth) because her father's resident return visa had been cancelled under s.109 of the Act on the basis of providing incorrect information in his protection visa application. The applicant's dependent partner visa was granted on the basis of her relationship with her parents, and it was accepted that she held this visa only because her father held a valid visa. The Administrative Appeals Tribunal (AAT) was the court hearing the review.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa under s.140(2) remained valid, given that the Tribunal had subsequently set aside the cancellation of her father's resident return visa. The Tribunal was required to determine the effect of setting aside the father's visa cancellation on the consequential cancellation of the applicant's visa.

The Tribunal reasoned that pursuant to s.114 of the Act, if a decision to cancel a visa under s.109 is set aside by the Tribunal, that 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 noted that Departmental Policy Guidelines provide that a consequential s.140 cancellation would also be set aside in the same manner as the s.109 cancellation, meaning the visa would be taken never to have been cancelled. Applying this principle, the Tribunal found that because the cancellation of the applicant's father's visa had been set aside, her own visa was taken never to have been cancelled.

Consequently, the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.