Federal Court. Does the Federal Court have jurisdiction to review cancellations made under s 140(1) of the Migration Act 1958 (Cth)? Does s 140(1) apply to a person who is no longer a member of the family unit of a person whose visa was cancelled under ss 109, 116, 128, 133A, 133C or 137J?
The Applicant was granted a subclass 485 visa as a secondary applicant, on the basis of her relationship with her then de facto partner, the primary applicant.
After they were granted subclass 485 visas, the relationship ended.
Then, the primary visa holder successfully sought the cancellation of his visa under s 116(1)(g).
As a result, the Department notified the Applicant (secondary visa holder) that her visa was cancelled by operation of law under s 140, which provided as follows:
140 Cancellation of visa results in other cancellation
(1) If a person’s visa is cancelled under section … 116 (general power to cancel), … a visa held by another person because of being a member of the family unit of the person is also cancelled.
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Some of the questions to the Federal Court (FCA) were as follows:
Question 1: If a visa cancellation under s 140 of the Migration Act 1958 (Cth) occurs by operation of law, is it therefore not a "migration decision" within the meaning of s 476A(1), with the result that the latter provision does not oust the Federal Court's jurisdiction under s 39B of the Judiciary Act 1903 (Cth) to review the cancellation?
Question 2: Can it be said that, as the secondary visa holder was no longer a member of the primary visa holder's family unit by the time that his visa was cancelled under s 116, "her visa was not one answering the description of visas which would also be cancelled by operation of law", with the result that her visa was not subject to the terms of s 140(1)?
The FCA answered those questions as follows: