s 140(1): cancellation of visa held because of being a MOFU

Federal Court: Appellant and wife were granted subclass 186 visas as secondary and primary applicants, respectively, and then divorced. DHA then cancelled the wife's visa under s 128 and the Appellant's visa was cancelled under s 140(1) by operation of law: "a visa held by another person because of being a member of the family unit [MOFU] of the person is also cancelled". Appellant applied for judicial review (JR) arguing: he had standing in the JR application; as he was no longer a MOFU at the time of the cancellation, s 140(1) did not apply; s 140(2) applied instead.

The Appellant's wife applied for a subclass 186 visa and the Appellant, who at the time was her husband, applied as a member of the her family unit (MOFU). They were both granted visas.

The Department later discovered that the nominator had gone into liquidation before the visa was granted. As a result, a delegate of the Minister found that there were grounds for cancelling the visa under s 116 of the Migration Act 1958 (Cth), presumably pursuant to s 116(1)(a) or (aa), which read as follows:

(1)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is satisfied that:

(a)  the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that is no longer the case or that no longer exists; or

(aa)  the decision to grant the visa was based, wholly or partly, on the existence of a particular fact or circumstance, and that fact or circumstance did not exist; or

As the Appellant's wife was outside Australia at the time of cancellation, the delegate cancelled her visa under s 128 without notice to her nor to the Appellant. Section 128 provided as follows:

If:

(a)  the Minister is satisfied that:

(i)  there is a ground for cancelling a visa under section 116; and

(ii)  it is appropriate to cancel in accordance with this Subdivision; and

(b)  the non-citizen is outside Australia;

the Minister may, without notice to the holder of the visa, cancel the visa.

As a result, the Appellant's visa was cancelled by operation of law on the same day under s 140(1), which read as follows:

(1)  If a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.

The cancellation decision record only made reference to the Appellant's ex-wife's visa, as the Appellant's visa was cancelled by operation of law.

The Appellant's ex-wife then wrote to the delegate, seeking revocation of the cancellation decision, pursuant to s 131. The Appellant also wrote to the Minister, making submissions in favour of revocation of the cancellation decision.

The delegate decided not to revoke the cancellation and the non-revocation decision record did not address the Appellant's arguments in favour of revocation.

The Appellant (on his own) applied to the Federal Circuit Court (FCCA) for review of the cancellation decision. The application was not for judicial review of the non-revocation decision, but of the cancellation decision.

The Appellant argued to the FCCA that, instead of s 140(1), s 140(2) applied, which read as follows:

(2)  If:

(a)  a person's visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister's personal powers to cancel visas on section 109 grounds), 133C (Minister's personal powers to cancel visas on section 116 grounds) or 137J (student visas); and

(b)  another person to whom subsection (1) does not apply holds a visa only because the person whose visa is cancelled held a visa;

the Minister may, without notice to the other person, cancel the other person's visa.

The FCCA dismissed that application and the Appellant eventually appealed the FCCA's decision to the Federal Court (FCA), the questions to which were as follows:

Question 1: Given that s 140(1) referred to a visa held by another person because of being a MOFU of a person whose visa was cancelled under s 128 and that the Appellant was no longer a MOFU of his ex-wife at the time of the cancellation, can it be said that s 140(1) did not apply to the Appellant at that time?

Question 2: Can it be said that s 140(2) applied, with the result that the Minister had a discretion to cancel the visa and thus should have taken the Appellant's submissions in favour of non-cancellation into consideration?

Question 3: Did the Appellant have standing in relation to the judicial review of the decision to cancel his ex-wife's visa?

The FCA answered those questions as follows.

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