Mohamed Illyas (Migration)

[2018] AATA 2487

Mohamed Illyas (Migration) [2018] AATA 2487 (4 June 2018)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mr Nafeez Ahamed Mohamed Illyas

CASE NUMBER:  1717538

DIBP REFERENCE(S):  BCC2017/2779087

MEMBER:Michael Cooke

DATE:4 June 2018

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the visa applicant’s Subclass 309 Partner (Provisional) (Class UF) visa.

Statement made on 04 June 2018 at 11:26am

CATCHWORDS
Migration – Cancellation – Partner (Provisional (Class UF) visa – Subclass 309 (Spouse (Provisional)) – Where applicant’s sponsor’s visa was cancelled – Cancellation of sponsor’s visa set aside by the Tribunal – Decision set aside and substituted

LEGISLATION
Migration Act 1958 (Cth), s 140(2)

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 Immigration on 4 August 2017 to cancel the applicant’s Subclass 309 Partner (Provisional) (Class UF) visa under s.140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa consequentially on the basis that the sponsoring partner’s Subclass 100 Partner visa was cancelled. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

3. The applicant appeared before the Tribunal on 7 May 2008 to give evidence and present arguments. The Tribunal also received oral evidence from the sponsor and other family members. The Tribunal hearing was conducted with the assistance of an interpreter in the Tamil and English languages.

4. The applicant was represented in relation to the review by his registered migration agent.

5. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The issue in this case is whether the consequential cancellation of the applicant’s visa due to the cancellation of his sponsor’s visa should be affirmed.

7. S.140(2) of the Migration Act 1958 reads as follows:

   (2)  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.

8. The cancellation of the applicant’s sponsor’s (Fathima Rusheda Mohamed FAIROZE) Subclass 100 visa has been set aside by the Tribunal on 4 June 2018 (see AAT 1717509).

9. Thus the Tribunal finds that the consequential cancellation of the applicant’s Subclass 309 visa (pursuant to s.140(2) of the Act) should now be set aside.

   DECISION

10. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the visa applicant’s Subclass 309 Partner (Provisional) (Class UF) visa.

    Michael Cooke
    Senior Member