RASTROU (Migration)

The applicant, Rastro, 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 primary legal issue before the Federal Circuit and Family Court of Australia was whether the delegate had the power to cancel Rastro's visa when his primary visa, the Partner (Provisional) (Class UX) visa, subclass 820, had not been cancelled. Rastro contended that the cancellation of his subclass 100 visa was consequential to the non-cancellation of his subclass 820 visa, and therefore, there was no lawful basis for the delegate's decision.

Her Honour Judge Sripathy found that the delegate's decision to cancel Rastro's subclass 100 visa was vitiated by a jurisdictional error. The delegate had purported to cancel the subclass 100 visa on the basis that Rastro had not satisfied the criteria for the grant of that visa, which was a condition for cancellation under section 116(1)(b) of the *Migration Act 1958* (Cth). However, the delegate's reasoning indicated that the cancellation was predicated on the fact that the subclass 820 visa had not been cancelled, and that the subclass 100 visa was granted as a consequence of the subclass 820 visa. The Court held that if the primary visa was not cancelled, there was no basis for a consequential cancellation of the secondary visa.

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