GECESKI (Migration)

This matter concerned an application for review of a decision to cancel the Subclass 101 (Child) visa held by the applicant, Gecseski. The applicant's visa was granted based on sponsorship by his father, who held a Subclass 801 Partner (Residence) visa. The dispute arose because the applicant's father's Partner visa had been cancelled, leading to a consequential cancellation of the applicant's Child visa.

The primary legal issue before the Tribunal was whether the applicant's Subclass 101 Child visa should be cancelled, given that the visa held by his sponsor (his father) had been cancelled. The Tribunal was required to consider the discretionary power to cancel the applicant's visa under section 140(2) of the Migration Act 1958 (Cth), even though no specific legislative grounds were mandated for such a cancellation.

The Tribunal reasoned that section 140(2) of the Act permitted the cancellation of the applicant's visa because he held it based on his father's visa status, and that visa had been cancelled and affirmed on review. While the applicant's father had provided incorrect information in his visa application, there was no evidence suggesting the applicant was aware of or complicit in this conduct. The Tribunal noted the applicant had returned to Macedonia, was living with his mother, and his agent indicated he would not contest the cancellation if his father's visa cancellation was affirmed. Despite this, the Tribunal still considered the discretionary factors, noting the applicant had lived in Australia for approximately three years, was studying, and had not breached visa conditions or Australian laws.

Ultimately, the Tribunal affirmed the decision to cancel the applicant's Subclass 101 Child visa, concluding that, having regard to all the circumstances, the visa should be cancelled.