Aljorani (Migration)

This matter concerned an application for review of a decision to cancel the Subclass 100 (Spouse) visa of an 11-year-old boy from Iraq. The applicant's visa had been cancelled under s.140(2) of the Migration Act 1958 (Cth) because his father's resident return visa had been cancelled under s.109 of the Act. The applicant's visa was granted on the basis of his relationship with his parents, and it was accepted that he held the visa only because his father held a visa. The review was heard by the Administrative Appeals Tribunal (AAT).

The legal issue before the Tribunal was whether the cancellation of the applicant's visa remained valid, given that the cancellation of his father's visa, which was the basis for the applicant's visa cancellation, had subsequently been set aside. Specifically, the Tribunal had to determine the effect of s.114 of the Act, which states that if a visa cancellation under s.109 is set aside, the visa is taken never to have been cancelled.

The Tribunal reasoned that while the grounds for cancelling the applicant's visa existed at the time of the delegate's decision, the subsequent setting aside of the father's visa cancellation under s.109 meant that, pursuant to s.114 of the Act, the father's visa was taken never to have been cancelled. Applying Departmental Policy Guidelines, which stipulate that a consequential s.140 cancellation should also be set aside if the original s.109 cancellation is set aside, the Tribunal concluded that the applicant's visa should be treated as if it had never 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.