POURMOURAD FARDDARABAD (Migration)

The applicant, Pourmourad Farddarabad, sought judicial review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs to cancel his Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse). The decision under review was made by a delegate of the Minister.

The central legal issue before the Federal Circuit and Family Court of Australia was whether the delegate had the power to cancel the applicant's visa when his primary visa, the Partner (Provisional) (Class UH) visa, Subclass 820, had not been cancelled. The applicant argued that the cancellation of his Subclass 100 visa was invalid because it was a consequential cancellation that depended on the cancellation of the primary visa, which remained in effect.

Her Honour Judge Sripathy found that the delegate's decision to cancel the applicant's Subclass 100 visa was vitiated by jurisdictional error. The Court reasoned that the legislative framework governing partner visas contemplates a sequential process where the provisional visa must be cancelled before the permanent visa can be cancelled on certain grounds. As the applicant's Subclass 820 visa had not been cancelled, there was no legal basis for the consequential cancellation of his Subclass 100 visa. The Court applied the principles of administrative law concerning jurisdictional error and the proper construction of migration legislation.

The Court ordered that the decision of the Minister to cancel the applicant's Partner (Migrant) (Class BC) visa, Subclass 100 (Spouse) be set aside.