Nallbani (Migration)

This matter concerned an application for review by the applicant, a citizen of Albania, of a decision to cancel her Subclass 801 (Spouse) visa. The applicant's visa had been cancelled under s.140(2) of the Migration Act 1958 (Cth) because her husband's resident return visa had been cancelled under s.116(1AA) of the Act. The applicant's Subclass 801 visa was granted on the basis that her husband held a permanent visa. The review was heard by Senior Member Denis Dragovic of the Administrative Appeals Tribunal.

The primary legal issue before the Tribunal was whether the cancellation of the applicant's visa was valid, given that the cancellation of her husband's resident return visa, which formed the basis for her visa cancellation, had subsequently been set aside by an earlier Tribunal decision. The Tribunal was required to consider the effect of the husband's resident return visa cancellation being set aside on the validity of the applicant's visa cancellation under s.140(2) of the Act.

The Tribunal reasoned that while the grounds for cancelling the applicant's visa existed at the time of the delegate's decision, the subsequent setting aside of her husband's resident return visa cancellation was determinative. The Tribunal noted departmental policy which states that if a s.116 cancellation decision is set aside by a court or tribunal, the visa is taken to have never been cancelled, and any consequential cancellation under s.140 would be treated similarly. Applying this policy, the Tribunal concluded that the applicant's husband's visa was to be taken as never having been cancelled, thereby invalidating the basis for the cancellation of the applicant's visa.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant's Subclass 801 (Spouse) visa.