Mohammadi (Migration)

[2020] AATA 4658

Mohammadi (Migration) [2020] AATA 4658 (1 September 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Mrs Gul Chaman Mohammadi

CASE NUMBER:  1901021

HOME AFFAIRS REFERENCE(S):          BCC2019/7000

MEMBER:Sean Baker

DATE:1 September 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

Statement made on 1 September 2020 at 4:51pm

CATCHWORDS

MIGRATION – cancellation – Subclass 100 (Spouse) (Class TU) visa – Subclass 100 (Spouse) – sponsor’s visa cancelled – applicant’s visa consequentially cancelled – sponsor’s visa restored upon review – ground for cancellation no longer exists – decision under review set aside 

LEGISLATION

Migration Act 1958, ss 114, 116, 140, 360
Migration Regulations 1994

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. Mrs Mohammadi is a citizen of Afghanistan. She was granted a Subclass 100 (Spouse) visa on 13 May 2018, sponsored by her Husband Mr Mohammadi. On 21 December 2018 a delegate of the Minister for Immigration cancelled Mr Mohammadi’s visa under section 116 of the Migration Act 1958 and on 9 January 2019 Mrs Mohammadi’s visa was cancelled under subsection 140(2) of the Act which provides that, if a person’s visa is cancelled under section 116 and another person holds a visa only because the person whose visa was cancelled held a visa, the Minister may, without notice, cancel the other person’s visa.

2. 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 review was conducted during the COVID-19 pandemic. In reaching its decision the Tribunal did not consider a hearing to be necessary, as it was able to find in favour of the visa applicant on the basis of the material before it, pursuant to s.360(2)(a) of the Act.

4. The applicant was represented in relation to the review by her 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. In a separate decision (case number 1838057) I have decided to set aside the decision cancelling Mr Mohammadi’s visa and to substitute a decision not to cancel his Subclass 155 (Five Year Resident Return) visa. In accordance with subsection 114(1) of the Migration Act, if the Tribunal sets aside a decision under section 116 to cancel a person’s visa, the visa is taken never to have been cancelled. It follows that the ground for the exercise of the power in subsection 140(2) of the Act no longer exists and that the decision to cancel Mrs Mohammadi’s visa should therefore be set aside.

   DECISION

7. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 100 (Spouse) visa.

   Sean Baker
   Member