Shao (Migration)

This matter concerned an application by a visa holder for review of a decision to cancel his Subclass 309 Partner (Provisional) visa. The cancellation was consequential to the cancellation of his former partner's Subclass 801 visa under s.109 of the *Migration Act 1958* (Cth) due to her failure to inform the Department of a change in circumstances. The applicant's visa was cancelled under s.140(2) of the Act, which permits cancellation where another person's visa is cancelled under specified sections and the visa holder holds their visa only because the other person held a visa.

The Tribunal was required to determine whether the cancellation of the applicant's visa was valid, given that the decision to cancel his former partner's visa had subsequently been set aside by the Tribunal. A further issue arose concerning the delegation of power to the Departmental officer who made the cancellation decision.

The Tribunal reasoned that pursuant to s.114 of the Act, if a decision to cancel a visa under s.109 is set aside, the visa is taken never to have been cancelled. While the Act does not expressly address the impact on consequential cancellations under s.140(2), the Department's policy is that such consequential cancellations are also set aside. Therefore, as the cancellation of the former partner's visa was set aside, it was taken never to have been cancelled, meaning the ground for cancelling the applicant's visa under s.140(2) no longer existed. Additionally, the Tribunal noted that the officer who made the cancellation decision lacked the necessary delegation to do so.

The Tribunal set aside the decision to cancel the applicant's Subclass 309 visa and substituted a decision not to cancel it.