Danesh (Migration)

[2022] AATA 2032

Danesh (Migration) [2022] AATA 2032 (18 June 2022)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANTS:  Mrs Touran Danesh
Mr Ahmad Molaei
Miss Sarina Molaei

REPRESENTATIVE:  Mr Navid Kouskhke Baghi (MARN: 1681603)

CASE NUMBER:  1913344

HOME AFFAIRS REFERENCE(S):          BCC2017/826515

MEMBER:Denis Dragovic

DATE:18 June 2022

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicants’ Subclass 100 visas.

Statement made on 18 June 2022 at 10:08am

CATCHWORDS

MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – sponsor’s visa cancelled – member of the family unit – sponsor’s visa cancellation set aside – sponsor’s visa taken never to have been cancelled – grounds for cancellation does not exist – decision under review set aside

LEGISLATION

Migration Act 1958, ss 109, 140
Migration Regulations 1994, Schedule 2, cl 309.211

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 Home Affairs to cancel the first named applicant’s Subclass 100 (Spouse) visa under s 109(1) of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa on the ground that the visa of the sponsor for the subclass 100 visa had his visa cancelled for reasons of having provided incorrect information and when considering the discretionary elements of whether the visa should be cancelled the delegate came to the conclusion that it should.

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

4. The applicants appeared before the Tribunal in a joint hearing with Mr Nosrt Allah Mollae (“husband”) on 31 May 2022 to give evidence and present arguments. As such the Tribunal received oral evidence from Mr Nosrt Allah Mollae as a witness in this case along with evidence from Negar Zahiri, the second named applicant’s wife.

5. It was explained to the applicants that evidence provided in one case would be taken as evidence provided to the Tribunal in the other matter. The applicants acknowledged this approach.

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

7. The applicants were represented in relation to the review.

8. The relevant law for this matter, as detailed in s 140(2), is that if a person’s visa is cancelled under ss 109 and another person holds a visa only because the person whose visa is cancelled held a visa, and the other person did not hold the visa because of being a member of the family unit of the person whose visa was cancelled, the Minister may cancel the other person’s visa.

9. In this case the Minister exercised the power to cancel the applicants’ visas through his delegate on the 20 May 2019. The applicants appealed this decision to the Tribunal on the 28 May 2019. This Tribunal was constituted for the purpose of reconsidering this matter.

   Consideration of whether the applicants held visas only because of another person whose visa was cancelled.

10. Section 140(2) of the Act states that if:

    (a) a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

    (b) another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

    the Minister may, without notice to the other person, cancel the other person’s visa.

11. The applicants were granted subclass 100 partner migrant visas on the 20 May 2013 by way of an application made by the applicant including a sponsorship undertaking dated December 2012 and partner visa application dated February 2013.

12. A requirement that the applicants had to fulfill at the time of their obligation and at the time of the decision for a partner visa (cl 309.211) was that the spouse or de facto partner is an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. The sponsor, Mr Nosrt Allah Mollae, was at the time an Australian permanent resident based upon the grant of a subclass 866 visa on 3 March 2010.

13. A requirement of the grant of the subclass 100 visa which is the visa under consideration is that the ‘applicant is the holder of a Subclass 309 visa’. As such, in this instance, the applicants obtained their subclass 100 visas only because the husband held a permanent residency visa at the time of their application for the subclass 309 visa.

14. The Minister’s delegate cancelled the visa held by Mr Nosrt Allah Mollae on the 16 May 2019 under s 109 for having provided incorrect information, namely that he was stateless when he was in actual fact a citizen of Iran. As a result, the applicants’ visas were cancelled.

15. Upon review of the visa cancellation of Mr Nosrt Allah Mollae at the Tribunal (case number 1913358), the outcome was that the Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 866 (Protection) visa.

16. As the applicants were granted visas based upon Mr Nosrt Allah Mollae holding his visa and given that the cancellation that triggered the appeal to this Tribunal was set aside and as such is taken never to have been cancelled, then the grounds for cancellation for the applicants under s 140(2) does not exist.

    DECISION

17. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the visa.

    Denis Dragovic
    Deputy President