Yang (Migration)

[2024] AATA 170

Yang (Migration) [2024] AATA 170 (2 February 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

APPLICANT:  Ms Hsin He Yang

REPRESENTATIVE:  Mr Mark Edward Northam

CASE NUMBER:  2315036

HOME AFFAIRS REFERENCE(S):          BCC2023/2705124

MEMBER:R. Skaros

DATE:2 February 2024

PLACE OF DECISION:  Sydney

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class BS (Subclass 801) Partner visa.

Statement made on 02 February 2024 at 1:15pm

CATCHWORDS

MIGRATION – Partner (Residence) (Class BS) visa – Subclass 801 (Partner) – consequential cancellation after primary visa holder spouse’s visa cancelled – spouse’s cancellation set aside on review and taken never to have been cancelled – decision made without hearing necessary – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth), ss 109, 114(1), 140(2), 360(2)(a)

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 Home Affairs on 18 September 2023 to cancel the applicant’s Subclass 801 Partner (Residence) (Class BS) visa under s 140(2) of the Migration Act 1958 (the Act).

2. The delegate cancelled the visa on the basis that the applicant held the visa only because her spouse (Mr Tat Wing Lee) held a visa; namely, the Resident Return (Subclass 155) visa, which had been cancelled by the Department on 23 May 2023.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

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. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

6. The applicant was sponsored for the combined Partner (Temporary) Subclass 820 and Partner (Permanent) Subclass 801 visa by her spouse, Mr Tat Wing Lee. The applicant was granted the Subclass 801 visa on 19 September 2022.

7. On 23 May 2023, the Department decided to cancel Mr Lee’s Subclass 155 visa under s 109 of the Act. This event triggered the cancellation of the applicant’s visa under s 140(2) of the Act. Under that provision, a visa is liable for cancellation where a person’s visa is cancelled under s 109 of the Act and another person holds a visa only because the person whose visa was cancelled held a visa.

8. As the applicant held the Subclass 801 Partner visa only because Mr Lee held a visa, the Department sought to cancel her visa following the cancellation of Mr Lee’s visa. The delegate was satisfied that the ground of cancellation in s 140(2) had been established and, after considering various circumstances, exercised their discretion to cancel the applicant’s visa.

9. Mr Lee applied to the Tribunal for review of the decision to cancel his Resident Return (Subclass 155) visa. On 2 February 2024, the Tribunal decided to set aside that decision and substituted it with a decision not to cancel Mr Lee’s Resident Return (Subclass 155) visa.

10. Pursuant to s 114(1) of the Act, if a decision made under s 109 to cancel a person’s visa is set aside by the Tribunal, then the visa is taken never to have been cancelled. Accordingly, given the decision made by the Tribunal to set aside the cancellation of Mr Lee’s Subclass 155 visa, it follows that Mr Lee’s visa is taken to never have been cancelled. While there is no provision in the legislation which specifically deals with the effect of this on consequential cancellations under s 140(2) of the Act, it appears that what should logically follow is to set aside the decision to cancel the applicant’s visa on the basis that the ground of cancellation under s 140(2) does not exist.

    DECISION

11. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Class BS (Subclass 801) Partner visa.

    R. Skaros
    Senior Member