NGUYEN (Migration)

The Administrative Appeals Tribunal reviewed a decision to cancel the visa of the first applicant, Ms. Nguyen. The cancellation was based on section 140(2) of the Migration Act 1958 (Cth), which allows for the cancellation of a visa if the sponsor's visa is cancelled. The dispute arose because the applicant's sponsoring partner, Quoc Hung Nguyen, had provided incorrect information in his own visa application, leading to the cancellation of his visa.

The Tribunal was required to determine whether the cancellation of Ms. Nguyen's visa under section 140(2) was valid. This involved considering the effect of Quoc Hung Nguyen's non-compliance with his visa application requirements, specifically regarding the disclosure of previous relationships and children, and whether his visa had indeed been cancelled in a manner that would trigger the cancellation of Ms. Nguyen's visa.

The Tribunal reasoned that section 140(2) of the Act, which deals with consequential cancellations, is a discretionary power. It noted that the cancellation of Quoc Hung Nguyen's visa was based on his failure to provide correct information in his Partner visa application, specifically by failing to disclose a previous de facto relationship and a child. However, the Tribunal found that the basis for the cancellation of Quoc Hung Nguyen's visa was flawed because his visa was not, in fact, cancelled. The Tribunal concluded that the decision to cancel Ms. Nguyen's visa under section 140(2) should be set aside because the prerequisite condition – the cancellation of the sponsor's visa – had not been met.

The Tribunal set aside the decision under review and substituted a decision not to cancel the first applicant's Subclass 309 (Spouse (Provisional)) visa. The Tribunal stated it had no jurisdiction with respect to the other applicants.