Barfizad (Migration)

The Administrative Appeals Tribunal considered the cancellation of the visa applicant's Partner (Migrant) (Class BC) subclass 100 visa. The dispute arose because the visa applicant's subclass 100 visa was cancelled based on her husband, the primary visa holder, having his permanent visa cancelled.

The Tribunal was required to determine whether the cancellation of the visa applicant's subclass 100 visa was valid, given that the primary visa holder's permanent visa was subsequently reinstated. The central legal issue was the application of subsection 140(2) of the Migration Act 1958 (Cth), which permits the Minister to cancel a person's visa if their visa is cancelled under section 109 and that person's visa is held only because the other person held a visa.

The Tribunal reasoned that the visa applicant's subclass 100 visa was granted on the basis of her husband holding a Protection visa. When the husband's Protection visa was cancelled, the Department of Immigration and Border Protection (DIBP) cancelled the visa applicant's subclass 100 visa under subsection 140(2). However, DIBP later reinstated the husband's permanent visa. The Tribunal concluded that, with the reinstatement of the husband's visa, the condition for cancelling the visa applicant's visa under subsection 140(2) no longer applied. Consequently, the Tribunal found that the visa applicant's visa ought not to have been cancelled.

The Tribunal set aside the decision under review and substituted a decision not to cancel the visa applicant's subclass 100 Partner visa, remitting the matter to DIBP for the reinstatement of the visa.