Yang (Migration)

The Administrative Appeals Tribunal considered the case of Ms Yang, a national of China, whose Partner (Provisional) (Class UF) visa, subclass 309, was cancelled. The cancellation was a consequence of her sponsor, Mr Zhonglin Zhang, having his visa cancelled. Ms Yang had applied for the visa sponsored by Mr Zhang, her spouse, and was granted the visa in September 2016, subsequently entering Australia to live with him.

The primary legal issue before the Tribunal was whether the grounds for cancelling Ms Yang's visa were made out under section 140(2) of the *Migration Act 1958* (Cth), and if so, whether the discretion to cancel the visa should be exercised. Section 140(2) permits the cancellation of a visa if it was granted because another person held a visa, and that other person's visa has since been cancelled.

The Tribunal found that the ground for cancellation was established because Mr Zhang's visa had been cancelled under section 109 of the Act, meaning he no longer held the visa that underpinned the grant of Ms Yang's partner visa. In considering the exercise of discretion, the Tribunal noted that Ms Yang had lived in Australia for approximately three years and may have established community ties. It acknowledged that cancellation would result in her becoming an unlawful non-citizen, potentially facing detention and removal, and experiencing emotional distress and difficulty finding employment in China. However, the Tribunal also observed that there was no information suggesting Ms Yang had behaved unfavourably towards the Department.

Ultimately, the Tribunal affirmed the decision to cancel Ms Yang's visa. It concluded that, having regard to all the relevant circumstances, the visa should be cancelled, noting that Ms Yang could avoid many difficulties by departing Australia voluntarily.