Babaali (Migration)

[2019] AATA 6375

Babaali (Migration) [2019] AATA 6375 (8 November 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Maryam Babaali

CASE NUMBER:  1812561

DIBP REFERENCE(S):  BCC2018/1826557 CLF2012/246552 OSF2012/104646

MEMBER:Nicole Burns

DATE:8 November 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 820 Partner (Temporary) (Class UK) visa.

Statement made on 08 November 2019 at 10:02am

CATCHWORDS
MIGRATION – cancellation – Partner (Temporary) (Class UK) visa – Subclass 820 (Spouse) subsequent cancellation – decision to cancel husband’s visa substituted – husband’s visa not cancelled – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth),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 on 27 April 2018 to cancel the applicant’s Subclass 820 Partner (Temporary) (Class UK) visa under s.140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant held her visa only because another person whose visa was cancelled held a visa.  As the applicant was granted a Partner visa because her husband, Moshen Kazeminia was granted a visa and his visa was cancelled on 26 April 2018, the applicant’s visa was also cancelled.

3. The applicant’s husband sought review of the decision to cancel his visa to the Administrative Appeals Tribunal and the matter was considered in a separate review.[1]  

   [1] AAT No. 1811922

4. The applicant appeared before the Tribunal on 31 October 2019 to give evidence and present arguments about the issues in her case.  The Tribunal also received oral evidence from her husband.  The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages. The applicant was represented in relation to the review by her registered migration agent, who attended the hearing (by phone).

5. On 8 November 2019 the Tribunal made a decision to set aside the decision under review in the applicant’s husband’s case and substitute a decision not to cancel his visa under s109 of the Act.  In light of that decision, the Tribunal is satisfied that Moshen Kazeminia’s visa is taken, pursuant to s114 of the Act, never to have been cancelled and therefore there is no basis for the consequential cancellation of the applicant’s visa under s140 and the decision to cancel the applicant’s visa should be set aside on the basis that it is taken never to have been cancelled. 

6. The Tribunal observes that this is consistent with Department policy[2] which, also citing s114(1) of the Act, states explicitly 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.’

   [2] Departmental Policy General visa cancellation powers (s109, s116, s128, 134B and s140), Procedural Instructions, Cancellation decisions, Set Aside of s109 cancellation decisions : >

   For these reasons the Tribunal is satisfied that the grounds for cancellation in this case are not made out.

   DECISION

7. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 820 Partner (Temporary) (Class UK) visa.

   Nicole Burns
   Member