Barfizad (Migration)

[2018] AATA 3818

Barfizad (Migration) [2018] AATA 3818 (30 August 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Miss Naval Barfizad (visa applicant)
Ms Hanieh Babaei
Miss Yasaman Babaei  

CASE NUMBER:  1621831

DIBP REFERENCE(S):  BCC2015/394889

MEMBER:Ian Garnham

DATE:30 August 2018

PLACE OF DECISION:  Melbourne

DECISION:The tribunal sets aside the decision under review and substitutes a decision not to cancel the visa applicant’s subclass 100 (Partner) visa.

Statement made on 30 August 2018 at 8:59am

CATCHWORDS
MIGRATION – cancelation – Partner (Migrant) (Class BC) – Subclass 100 (Spouse) – visa applicant’s husband’s permanent visa reinstated – decision under review set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), ss 101, 109, 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 6 May 2016 to cancel the applicant’s Subclass 100 Partner (Migrant) (Class BC) visa under s.140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the visa applicant’s husband’s visa was cancelled on 6 May 2016.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The visa applicant (by telephone from Iran) and the other applicants in person appeared before the Tribunal on 10 April 2018 to give evidence and present arguments.

5. The Tribunal hearing was conducted with the assistance of an interpreter in the Persian and English languages.

6. The applicants were represented in relation to the review by their registered migration agent. The representative attended the Tribunal hearing.

7. For the following reasons, the Tribunal has concluded that the decision to cancel the visa applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE  

8. The primary visa holder, and husband of the visa applicant, was granted a subclass 866 Protection visa on 23 September 2010. On 6 May 2016 the Department (DIBP) cancelled the primary visa holder’s visa pursuant to section 109 of the Act for failing to comply with subsection 101(b) of the Act.

9. Subsection 140(2) provides that if a person’s visa is cancelled under section 109;

   and, another person …holds a visa only because the person whose visa has been cancelled held a visa; the Minister may, without notice to the other person, cancel the other person’s visa.

10. In this case, the visa applicant held a subclass 100 Partner visa, granted on 26/07/2013 because her husband held a Protection visa and sponsored her to come to Australia. 

11. On 6 May 2016 the delegate cancelled the visa applicant’s visa pursuant to subsection 140(2) of the Act.  On 22/03/2017 the visa applicant departed Australia.

12. On 3 January 2018 DIBP reinstated the visa applicant’s husband’s permanent visa.

13. This means the tribunal no longer has power to cancel the visa applicant’s visa because subsection 140(2) no longer applies to their circumstances.  Therefore the visa applicant’s visa ought not be cancelled and should be reinstated.

14. Therefore the delegate’s decision is set aside and this matter is remitted to DIBP for reinstatement of the visa applicant’s subclass 100 Partner visa accordingly.

    DECISION

15. The tribunal sets aside the decision under review and substitutes a decision not to cancel the visa applicant’s subclass 100 (Partner) visa.

    Ian Garnham
    Member