Login / Join
Immigration Daily News Consequences of Cancellation of a Sponsoring Partner's Visa!Australian Immigration Daily News
Breaking Australian immigration news brought to you by Migration Alliance and associated bloggers. Please email help@migrationalliance.com.au
- Font size: Larger Smaller
- Hits: 13478
- 11 Comments
Consequences of Cancellation of a Sponsoring Partner's Visa!
Quiz time!
That’s right! Just because everyone is stumbling back to work from the long weekend, there is no excuse for not answering! Not even if you are a loyal follower of the Western Bulldogs or the Cronulla Sharks and are seriously hung over from too much celebrating! (As for myself, I remain “clueless” about both rugby and AFL after nearly 15 years in Australia, but at least I deserve some credit for being (vaguely!!!!) aware that the Bulldogs and Sharks both won their Grand Finals (thanks only to SBS!)).
And if my poor son has to suffer through the HSC exams in the next few weeks, then the least that could happen is that the migration profession should be subjected to this quiz, right!!
Guess what: the quiz ain’t easy! So you’ll be allowed to renew your registration even if you flunk!
Ready? Here it is:
Suppose you have a client who has married an Australian permanent resident, and on that basis has been granted a Partner visa (Subclass 100). Suppose further that the Department has then cancelled the visa held by your client’s husband under section 109 of the Migration Act, on the basis that the husband did not comply with section 103 of the Act, due to having given bogus documents to the Department in support of his own visa application.
In that scenario, does the Department have the power to cancel your client’s Subclass 100 Partner visa under section 140(2) of the Act?
OK, to save all of you the effort of checking Austlii or Legend to see what section 140 says, this is what it is provides (OK, I have also provided a link!!!):
“Cancellation of visa results in other cancellation
140(1) If a person’s visa is cancelled under section 109(incorrect information)….a visa held by another person because of being a member of the family unit of the person is also cancelled.
(2) If:
(a) a person’s visa is cancelled under section 109…..; 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.
OK, time’s up! If you’re stuck, or if reading this far has given you a headache, you can guess and you have a 50% chance of getting this right!
Drum roll!!!!! The answer (at least according to the decision of Judge Driver of the Federal Circuit Court in the case of Ara v Minister for Immigration & Anor (2016) FCCA 2154 (29 September 2016) the answer to the question is:
“Yes, in these circumstances the Minister (Department) can cancel the Partner visa!”
(Those of you who got the answer right without peeking at the case are free to brag about your wisdom in the comments section, unless your name is Donald Trump in which case no further bragging or tweeting is allowed!!)
How did Judge Driver arrive at this decision?
The visa holder tried to argue that the Minister’s (and thus the Tribunal’s) discretion to cancel her visa was not “enlivened” because the fact that her husband held a permanent residence visa was not the only reason that she held a Subclass 100 partner visa – in other words, as was “observed” in a previous case, Rani v Minister for Immigration, it is never strictly speaking possible for a person to hold a visa “only because” another person holds or held a visa, because other requirements, such as public interest or health requirements, must also be satisfied.
Unfortunately for the visa holder, Judge Driver rejected this proposed interpretation of section 140(2) as “artificial” and because His Honour considered that it would have the result, which judges hate, of leaving section 104(2) “without work to do”
(in the arcane world of statutory interpretation, it is never allowed for statutory provisions to be “lazy”, they have always got to be kept busy and put to work!).
So, this is how Judge Driver worked out:
His Honour concluded (while at the same time remarking that the matter is “far from clear”) that the phrase: “holds a visa” as used in section 140(2), should be interpreted to mean “was granted a visa”.
So, on this interpretation, the power to cancel a visa under section 140(2) would be enlivened if a person was granted a visa “only because” another person whose visa was cancelled held a visa.
Accordingly, under the holding in this case, if a person holds a Partner visa, and their sponsoring spouse or de facto partner has their own visa cancelled, then under section 140(2), the person who holds the Partner visa is also liable to have their visa cancelled.
Judge Driver noted that this interpretation does produce a seemingly odd and anomalous result, namely that a person can have their own Partner visa cancelled if the sponsoring partner’s visa is cancelled, but they will not lose their entitlement to the visa in circumstances where the relationship has failed due to reasons of family violence, or where the sponsor has died.
The outcome here raises the effect of section 140(2) is fair, just or right:
From the information that is provided in the decision, the visa holder in this case did not know that her sponsoring partner had breached section 103 in the process of obtaining his own visa (which was the basis of his sponsorship). She was entirely “innocent” or so it appears, and evidently came to Australia on the good faith assumption that her sponsor held permanent residency in Australia. It seems extremely doubtful that she would have had any idea that her sponsor's visa might be cancelled at some point.
The practical effect here is that in the future, applicants for partner visas, and the registered migration agents who are advising them, may need to make enquiries as to whether there is any basis on which the sponsor’s visa may be cancelled. Otherwise, the applicant might uproot her/himself from her/his home country, only to find that her/his Partner visa might be cancelled through no fault of her/his own! Nightmare!
Might not this also create potential conflicts of interest which might make it impossible for an agent top act both for the visa applicant and the sponsor?
What a hornet’s nest of complications!
Are you ready to declare another 3-day weekend? I am!!!!!
Email: This email address is being protected from spambots. You need JavaScript enabled to view it.
Comments
-
Tuesday, 04 October 2016Then she can sponsor him to apply for a spouse visa.
Don't -
Thursday, 20 April 2017
Facts:
1- M came to Australia on subclass 309 visa (Partner Visa) based on her husband 866 visa
2- she got her PR (subclass 100 visa)
3- she divorced after that
4- Her Ex-husband visa cancelled as a result of incorrect information S109
Q)Can DIBP cancelled her PR visa based on her Ex-husband cancelation ? -
Friday, 21 April 2017
Q)Can DIBP cancelled her PR visa based on her Ex-husband cancelation ?
A) No, DIBP cannot cancel her PR just because her husband (or Ex)'s visa has been cancelled under S.109 of the Act. -
Thursday, 22 February 2018
Hi
Im phd student in melbourn. Im on bridge visa because visa is under process. I have a daughter 7-8 month old. My husband came on spouse visa in july 2017. Our relationship is over and i want to cancel his visa. He threats me that i cant cancel his visa because i have his daughter. What should i do in this regard. I want to cancel my spinsership for him -
Sunday, 19 April 2020
Yes, Hajra you can. Write an email to immi stating "not in genuine relationship" any more. document your side of the story as this will be looked at when your husband is questioned to allow him to stay or ask him to leave the country. the child's name is added to your passport if i am not wrong so he can not take your child without your presence.
However, please bare in mind that the legal battle might be time consuming and serious money consuming. If you can prove to the court that you are able to support the upbringing of your child then you can have the child too.
Also, depending on where you actually got married, the Australia divorce/separation order from the court may not stand. Definetly check with your original country's legal system (lawyer) to find what is the best to do. -
Wednesday, 20 March 2019
Hi I am married with a French man who has a sponsorship visa 482 .I am french as all but we are about to broke up should I still be on his sponsorship even if we divorced?
-
Tuesday, 14 April 2020
Hi, In April 2019 I sponsored PR to my wife. She wrote in PR that my husband and I having good relationships, financially he is supporting, helping me. She got PR in June 2019. Once she got PR and job , in Jan 2020 she complained Domestic Violence on me. She declared all the false information and lying in the Domestic application that since three years 2017 feb he is threatening me, killing me, financially, verbally, emotionally, physically harassed me. Based on court application can I able to cancel her PR??? Could you plz tell me . Thanks
-
Sunday, 28 February 2021
My wife is my sponsor and I am on my temporary Visa. we always have arguments and fights and she is always abusive to me. She always threatens me tearing up the partner visa 801. I want to move out and live her along because obviously drained me alot at work and in my studies.
-
Sunday, 28 February 2021
I seriously had enough of this and I want to move on. What is the next step I do?
-
Sunday, 22 May 2022
Facts:
1- A got subclass 820 based on her partner subclass 189 visa
2- After 5 years，A‘s partner got his subclass 155 visa
3- After 6 years，A got her subclass 155 visa
4- A’s partner 155 visa cancelled as a result of incorrect information S109
Q)Can DIBP cancelled A‘s subclass 155 visa based on her partner subclass 155 visa cancelation ?
Immigration blog
Very interesting indeed, however it is apparent that if the sponsoring partner's visa is cancelled, he/she will have to leave Australia at some point, in which case what purpose could there be for the sponsored partner to remain? I mean, they are still together as a couple, aren't they?