POURMOURAD FARDDARABAD (Migration)

[2019] AATA 1802

POURMOURAD FARDDARABAD (Migration) [2019] AATA 1802 (22 May 2019)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Miss TALA POURMOURAD FARDDARABAD

CASE NUMBER:  1835235

DIBP REFERENCE(S):  BCC2018/4676094

MEMBER:Meena Sripathy

DATE:22 May 2019

PLACE OF DECISION:  Sydney

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

Statement made on 22 May 2019 at 1:49pm

CATCHWORDS
MIGRATION – cancellation – Partner (Migrant) (Class BC) visa – Subclass 100 (Spouse) – primary visa not cancelled – no basis for consequential cancellation – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), ss 114, 140, 360

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 22 November 2018 to cancel the applicant’s Subclass 100 Partner (Migrant) (Class BC) visa under s140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant held her visa only because another person whose visa was cancelled held a visa.  As the applicant was granted a Partner visa because Akbar Pourmorad Farddarabad was granted a visa and Akbar Pourmorad Farddarabad’s visa was cancelled on 22 November 2018, the applicant’s visa was also cancelled.

3. Mr Akbar Pourmorad Farddarabad sought review of the decision to cancel his visa to the Administrative Appeals Tribunal and the matter was considered in a separate review (AAT case ref.1835225). 

4. 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.

5. On 22 May 2019 the Tribunal made a decision to set aside the decision under review in AAT case 1835225 and substitute a decision not to cancel Mr Akbar Pourmorad Farddarabad’s visa under s109 of the Act.  In light of that decision, the Tribunal is satisfied that Mr Farddarabad’s visa is taken, pursuant to s114 of the Act, never to have been cancelled and therefore there is no basis for the consequential cancellation of the applicant’s visa under s140 and the decision to cancel her visa should be set aside on the basis that it is taken never to have been cancelled.

6. The Tribunal observes that this is consistent with Department policy[1] which, also citing s114(1) of the Act, states explicitly that a consequential s140 cancellation would also be set aside in the same manner as the s109 cancellation. That is, any visa that was consequentially cancelled under s140 would be taken to never have been cancelled.

   [1] Departmental Policy General visa cancellation powers (s109, s116, s128, 134B and s140), Procedural Instructions, Cancellation decisions, Set Aside of s109 cancellation decisions :

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

   Meena Sripathy
   Member