HENG (Migration)

The Administrative Appeals Tribunal considered the case of Ms. Heng, whose Partner (Temporary) (Class TU) visa, subclass 820, was subject to consequential cancellation. This cancellation followed the earlier cancellation of her husband's Regional Sponsored Migration Scheme (AN 119) visa. The delegate of the Minister had cancelled the husband's visa due to non-compliance with sections 101 and 103 of the Migration Act, relating to bogus documents and incorrect information provided in his visa application.

The primary legal issue before the Tribunal was whether to affirm the decision to cancel Ms. Heng's visa, given that her visa was dependent on her husband's valid visa. The Tribunal was required to consider the grounds for cancellation against any grounds for not cancelling the visa, particularly in light of the applicant's circumstances and any potential hardship. This involved assessing the degree of integration into the Australian community and the impact on any children or other family members.

The Tribunal reasoned that section 140(2) of the Migration Act permitted the consequential cancellation of Ms. Heng's visa without notice because her visa was held only because her husband held a valid visa, which had subsequently been cancelled. While acknowledging the applicant's integration into the Australian community, her desire to start a family, and her and her husband's contributions as teachers of language and culture to the Khmer community, the Tribunal found these factors did not outweigh the grounds for cancellation. The Tribunal noted that the husband had resided in Australia since 2009 and the applicant since 2014, and that their community work could potentially be continued by others. The Tribunal was satisfied that the cancellation would not adversely affect any children under 18.

Ultimately, the Tribunal concluded that, on balance, the grounds for cancelling Ms. Heng's visa outweighed the grounds for not cancelling it. Therefore, the Tribunal affirmed the decision under review to cancel the visa.