Chou (Migration)

This matter concerned an application by a minor child, the applicant, for review of a decision to cancel their Subclass 820 Partner visa. The applicant's mother, Ms Chou, had applied for a Partner visa with Mr Benavides. During the application process, Ms Chou became pregnant, and it was later revealed that the applicant's biological father was not Mr Benavides but Mr Ben. The Department cancelled Ms Chou's visa on the grounds that she had breached sections 101 and 104 of the Migration Act 1958 (Cth) by ceasing to be in a spousal relationship with Mr Benavides prior to the grant of the permanent stage of the visa. Consequently, the applicant's visa was cancelled under section 140(2) of the Act.

The Tribunal was required to determine whether the cancellation of the applicant's visa under section 140(2) of the Migration Act 1958 (Cth) was valid. This section allows for the cancellation of a visa held by another person if that person holds a visa only because the person whose visa was cancelled held a visa, and the cancellation of the primary visa falls under specific grounds. The Tribunal also considered the prior decision to cancel Ms Chou's visa and its implications for the applicant's visa.

The Tribunal reasoned that the statutory criteria for the exercise of power under section 140(2) were not met in the applicant's case. While Ms Chou's visa had been cancelled, the Tribunal found no grounds to apply section 140(2) to the applicant's visa. Therefore, the Tribunal concluded that the decision to cancel the applicant's visa was incorrect.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 820 Partner visa.