Danesh (Migration)

The Administrative Appeals Tribunal considered the cancellation of Partner (Migrant) (Class BC) visas, Subclass 100, held by the applicants. The cancellation was based on the premise that the applicants held their visas only because their sponsor, Mr Nosrt Allah Mollae, held a permanent residency visa. Mr Mollae's visa had been cancelled by the Minister's delegate under s 109 of the Migration Act 1958 (Cth) for providing incorrect information regarding his citizenship.

The primary legal issue before the Tribunal was whether the applicants' visas could be cancelled under s 140(2) of the Act, which permits the Minister to cancel a person's visa if it was obtained solely because another person, whose visa is cancelled under specific provisions, held a visa. The Tribunal was required to determine if the condition precedent for cancellation under s 140(2) – namely, the cancellation of the sponsor's visa – had been validly established and remained in effect.

The Tribunal reasoned that the applicants' Subclass 100 visas were granted based on Mr Mollae holding a permanent residency visa at the time of their application. However, the Tribunal noted that Mr Mollae's visa cancellation, which formed the basis for the cancellation of the applicants' visas, had itself been set aside by the Tribunal in a separate review. Consequently, Mr Mollae's visa was taken never to have been cancelled. As the prerequisite for cancellation under s 140(2) was no longer met, the grounds for cancelling the applicants' visas did not exist. The Tribunal therefore set aside the decision to cancel the applicants' visas and substituted a decision not to cancel them.