Yang (Migration)

This matter concerned an application by Ms Yang for review of a decision to cancel her Partner (Permanent) (Class BS) visa (Subclass 801). Ms Yang's visa was granted based on her sponsorship by her spouse, Mr Tat Wing Lee, who held a Subclass 155 visa. The Department of Home Affairs subsequently cancelled Mr Lee's Subclass 155 visa under section 109 of the Migration Act 1958 (Cth). This cancellation triggered a consequential cancellation of Ms Yang's Subclass 801 visa under section 140(2) of the Act, as her visa was held only because Mr Lee held a visa.

The primary legal issue before the Tribunal was the effect of a subsequent decision to set aside the cancellation of Mr Lee's visa on the cancellation of Ms Yang's visa. Specifically, the Tribunal had to determine whether the ground for cancelling Ms Yang's visa under section 140(2) still existed after Mr Lee's visa cancellation was overturned.

The Tribunal reasoned that section 114(1) of the Migration Act provides that if a decision to cancel a visa under section 109 is set aside, the visa is taken never to have been cancelled. Given that the Tribunal had previously set aside the cancellation of Mr Lee's Subclass 155 visa, it followed that Mr Lee's visa was deemed never to have been cancelled. Although no specific provision addressed the impact of this on consequential cancellations under section 140(2), the Tribunal concluded that logically, the ground for cancelling Ms Yang's visa no longer existed.

Consequently, the Tribunal set aside the decision under review and substituted it with a decision not to cancel Ms Yang's Class BS (Subclass 801) Partner visa.