Mehdi (Migration)
[2021] AATA 5444
•1 December 2021
Mehdi (Migration) [2021] AATA 5444 (1 December 2021)
DECISION RECORD
DIVISION:Migration & Refugee Division
APPLICANT: Mr Muntazir Mehdi
CASE NUMBER: 1837640
HOME AFFAIRS REFERENCE(S): BCC2018/5898372
MEMBER:James Lambie
DATE:1 December 2021
PLACE OF DECISION: Brisbane
DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 802 (Child) visa.
Statement made on 01 December 2021 at 12:55pm
CATCHWORDS
MIGRATION– cancellation– Subclass 802 (Child) visa – Tribunal set aside the decision under review in the applicant’s father’s case – no basis for the consequential cancellation of the applicant’s visa under s.140 – decision under review set asideLEGISLATION
Migration Act 1958, ss 101,107,109, 114, 140STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW
This is an application for review of a decision made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 802 (Child) visa under s.140(2) of the Migration Act 1958 (the Act).
The applicant is a citizen of Pakistan. He was granted a Subclass 802 (Child) visa on 24 September 2015, sponsored by his father, Muhammad Ali. On 10 December 2018, a delegate of the Minister for Home Affairs cancelled Mr Ali’s visa under section 109 of the Act because it was determined that he did not comply with sections 101(a) and 101(b) of the Act. On 10 December 2018, the applicant’s visa was cancelled under subsection 140(2) of the Act, which provides that, if a person’s visa is cancelled under section 109 of the Act and another person holds a visa only because the person whose visa is cancelled held a visa, then the Minister may, without notice, cancel the other person’s visa.
The applicant’s father applied to the Administrative Appeals Tribunal for a review of the decision to cancel his visa. That matter was considered in a separate review[1].
[1] AAT Case No. 1837029.
The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.
The applicant appeared before the Tribunal on 25 February 2021. The hearing was, by consent, jointly held with Mr Ali and the applicant’s cousin’s related cases. The Tribunal also received oral evidence from Mr Ali’s son-in-law, Inayat Hussain Foladi. The Tribunal hearing was conducted with the assistance of an interpreter in the Hazaragi and English languages.
The applicant was represented in relation to the review by his registered migration agent. The representative attended the hearing.
On 30 November 2021, the Tribunal made a decision to set aside the decision under review in the applicant’s father’s case and substitute a decision not to cancel his visa under s.109 of the Act. In light of that decision, the Tribunal is satisfied that Mr Muhammad Ali’s visa is taken, pursuant to s.114 of the Act, never to have been cancelled and, therefore, there is no basis for the consequential cancellation of the applicant’s visa under s.140 and the decision to cancel the applicant’s visa should be set aside on the basis that it is taken never to have been cancelled.
The Tribunal notes that this is consistent with Departmental policy which, also citing s.114(1) of the Act, states that “a consequential s.140 cancellation would also be set aside in the same manner as the s.109 cancellation. That is, any visa that was consequentially cancelled under s.140 would be taken to never have been cancelled.”[2]
[2] Departmental Policy General visa cancellation powers (s109, s116, s128, 134B and s140), Procedural Instructions, Cancellation decisions, Set Aside of s109 cancellation decisions :For these reasons, the Tribunal is satisfied that the grounds for cancellation in this case are not made out.
DECISION
The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 802 (Child) visa.
James Lambie
Senior Member
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Remedies
0
0
0