Chinacalle v Minister for Immigration - Visa Cancellation Under s 140(1) [2026] FCA 441

Original Word Document (98.2 KB) Federal Court of Australia

Chinacalle v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2026] FCA 441

| File number: | QUD 773 of 2024 |
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| Judgment of: | WHEATLEY J |
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| Date of judgment: | 16 April 2026 |
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| Catchwords: | MIGRATION — Whether the Federal Court has jurisdiction pursuant to s 39B of the Judiciary Act 1903 (Cth) or s 476A of the Migration Act 1958 (Cth) to review the cancellation under s 140(1) — Whether an automatic visa cancellation by operation of law is a migration decision — Full Court authority that a cancellation under s 140(1) is by operation of law — Jurisdiction pursuant to s 39B confirmed

MIGRATION — Application for review — Where the Applicant was granted a subclass 485 visa as the secondary visa holder — Where the Applicant and the primary visa holder ceased to be in a de facto relationship — Where the primary visa was cancelled under s 116 of the Migration Act 1958 (Cth) — Where the Applicant’s visa was automatically cancelled under s 140(1) of the Migration Act 1958 (Cth) — Whether s 140(1) applied to cancel the Applicant’s visa when the Applicant was no longer in a de facto relationship with the primary visa holder — Application dismissed |
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| Legislation: | Constitution s 75

Administrative Decisions (Judicial Review) Act 1977 (Cth) s 3

Education Services for Overseas Students Act 2000 (Cth) s 20

Federal Court of Australia Act 1976 (Cth) s 32AB

Judiciary Act 1903 (Cth) s 39B

Migration Act 1958 (Cth) ss 5, 5E, 109, 116, 128, 137J, 137Q, 137T, 140, 474, 474A, 476, 476A, 478, 479

Migration Legislation Amendment (Judicial Review) Act 2001 (Cth)

Migration Litigation Reform Act 2005 (Cth)

Migration Regulations 1994 (Cth) reg 1.12, reg 2.43

Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth)

Migration Litigation Reform Bill 2005 (Cth) |
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| Cases cited: | BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387

BZX23 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 312; [2023] FCA 908

Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 459; [2021] FCAFC 130

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333; [2018] HCA 2

Farah v Minister for Immigration and Citizenship [2011] FCA 185

Forestry Corporation of New South Wales v South East Forest Rescue Inc (2025) 99 ALJR 794; [2025] HCA 15

Kelly v R (2004) 218 CLR 216; [2004] HCA 12

Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; [2007] FCAFC 62

Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29

Minister for Immigration and Citizenship v GKX18 (Jurisdiction) [2026] FCAFC 27

Mokhlis v Minister for Home Affairs (2020) 94 ALJR 843; [2020] HCA 30

Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulator (2008) 169 FCR 483; [2008] FCA 828

Palmanova Pty Ltd v Commonwealth of Australia (2025) 99 ALJR 1362; [2025] HCA 35

Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2

Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8; [2018] HCA 51

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

R v A2 (2019) 269 CLR 507; [2019] HCA 35

Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379; [1997] FCA 1493

Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62

Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300; [2007] FCA 18

Singh v Minister for Immigration and Border Protection (2018) 265 FCR 411; [2018] FCAFC 162

SkyCity Adelaide Pty Ltd v Treasurer of South Australia (2024) 419 ALR 361; [2024] HCA 37

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Thapaliya v Minister for Immigration and Border Protection [2018] FCCA 3278

Thapaliya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1741

Whittaker v Minister for Immigration and Border Protection [2017] FCA 494

Zheng v Minister for Immigration [2010] FMCA 92 |
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| Division: | General Division |
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| Registry: | Queensland |
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| National Practice Area: | Administrative and Constitutional Law and Human Rights |
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| Number of paragraphs: | 73 |
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| Date of last submissions: | 29 August 2025 (Respondent)

5 September 2025 (Applicant) |
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| Date of hearing: | 30 July 2025 |
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| Counsel for the Applicant: | Mr G Rebetzke |
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| Solicitor for the Applicant: | Sambi Legal |
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| Counsel for the Respondent: | Mr B McGlade with Mr N Hanna |
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| Solicitor for the Respondent: | Sparke Helmore |
ORDERS

| | | QUD 773 of 2024 |
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| BETWEEN: | MARIA ALEJANDRA PAZMINO CHINACALLE

Applicant | |
| AND: | MINISTER FOR IMMIGRATION, CITIZENSHIP AND MULTICULTURAL AFFAIRS

Respondent | |

| order made by: | WHEATLEY J |
| DATE OF ORDER: | 16 APRIL 2026 |
THE COURT ORDERS THAT:

1. The Amended Originating Application for relief under s 39B of the Judiciary Act 1903 (Cth) be dismissed.

2. The Applicant pay the Respondent’s costs of the proceedings to be taxed if not agreed.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

WHEATLEY J:

INTRODUCTORY OVERVIEW

1 Ms Chinacalle was granted a visa on the basis that she met the secondary criteria for the grant of that visa. That criteria included being a member of the same family unit as Mr Ortega, who was the primary applicant for the grant of that visa. At that time, Mr Ortega was Ms Chinacalle’s de facto partner. His visa was cancelled on 18 July 2024, pursuant to his own written request.

2 Due to the cancellation of Mr Ortega’s visa, the Minister notified Ms Chinacalle that her visa was also cancelled.

3 Ms Chinacalle now applies to this Court for a declaration that her visa was not cancelled because she claims the relevant provision of the Migration Act 1958 (Cth) (the Act) did not apply.

4 The parties identified that there was only one issue: being whether, by virtue of Mr Ortega’s visa cancellation, Ms Chinacalle’s visa was cancelled by operation of law pursuant to s 140(1) of the Act.

5 Ms Chinacalle submits that s 140(1) does not apply because at the time Mr Ortega’s visa was cancelled she had ceased to be a member of his family unit as they had separated. The Minister submits that s 140(1) does apply and her visa was properly cancelled by operation of law.

6 A further issue arises in relation to the Court’s jurisdiction to hear this matter, given that the Act provides a limited jurisdiction to this Court.

7 For the following reasons, this Court does have jurisdiction and the amended originating application must be dismissed.

GRANT AND CANCELLATION OF THE VISAS

8 Around late May 2023 Mr Ortega, Ms Chinacalle’s then de facto partner applied for a Temporary Skilled - Graduate Work Stream (Class VC) (subclass 485) visa. Ms Chinacalle also applied for a subclass 485 visa on the basis that she met the secondary criteria for the grant of that visa, including being a member of the same family unit as Mr Ortega.

9 On 10 August 2023, Mr Ortega and Ms Chinacalle were granted the subclass 485 visas.

10 Around December 2023, Ms Chinacalle separated from Mr Ortega.

11 Ms Chinacalle notified the Department of Home Affairs that she had separated from Mr Ortega, by way of a form headed “Notification of changes in circumstances” dated 9 May 2024. Ms Chinacalle advised that the separation was because of domestic violence.

12 On 18 July 2024, Mr Ortega’s visa was cancelled because he asked the Minister, in writing to cancel his visa: s 116(1)(g) of the Act and reg 2.43(1)(g) of the Migration Regulations 1994 (Cth) (the Regulations).

13 Ms Chinacalle was given notice dated 13 August 2024, that her visa was cancelled on 18 July 2024 pursuant to s 140(1) of the Act. Ms Chinacalle was advised that because Mr Ortega’s visa was cancelled on 18 July 2024, her visa was also cancelled by operation of law. Ms Chinacalle brings these proceedings to challenge the operation of that cancellation.

THE APPLICATION TO THIS COURT

14 Ms Chinacalle now brings an amended originating application relying on s 39B of the Judiciary Act 1903 (Cth) (Judiciary Act) seeking:

A declaration, pursuant to s39B(1A)(c) of the Judiciary Act 1903 (Cth) that, in the events which have occurred, the Applicant is the holder of a valid subclass 485 (temporary skilled) visa the Applicant ’ s subclass 485 (temporary skilled) visa was not cancelled by operation of law on 18 July 2024 and she continued (and continues) to hold a valid visa despite the cancellation of the visa of Daniel MARTINEZ ORTEGA on that date.

15 This Court only has limited jurisdiction under the Act: s 476A. Ms Chinacalle claims that the cancellation of her visa was by operation of law, and was not a decision, more specifically, not a migration decision under the Act. Hence, it is submitted that this Court does have the necessary jurisdiction to consider the amended originating application.

16 Two issues therefore arise:

(1) Is the cancellation of the Applicant’s visa pursuant to s 140(1) of the Act a migration decision (as defined in the Act) and therefore does this Court have jurisdiction?

(2) If this Court does have jurisdiction, does the cancellation of Mr Ortega’s visa mean that the Applicant’s visa was cancelled by operation of law pursuant to s 140(1) of the Act?

Does the Federal Court have jurisdiction to consider the s 140(1) cancellation?

Jurisdiction of the Federal Court under the Act

17 Both parties submit that this Court has jurisdiction by reason of s 39B(1A)(c) of the Judiciary Act. This is on the basis that the cancellation of Ms Chinacalle’s visa pursuant to s 140(1) of the Act is not a migration decision, as that term is defined in the Act. However, as the Court must be satisfied of its jurisdiction as its “first duty” or as a “threshold” issue in approaching a matter before it, this issue must be considered first: Plaintiff S164/2018 v Minister for Home Affairs (2018) 361 ALR 8; [2018] HCA 51 at 8. The Court has jurisdiction to determine whether it has jurisdiction: Re Macks; Ex parte Saint (2000) 204 CLR 158; [2000] HCA 62 at 53.

18 The Federal Court of Australia only has limited original jurisdiction, in relation to a migration decision: s 476A of the Act. That limited jurisdiction is only in certain circumstances, none of which apply in this case. The Federal Circuit and Family Court of Australia (Division 2) (Federal Circuit Court) has the same original jurisdiction in relation to a migration decision as the High Court of Australia under s 75(v) of the Constitution: s 476(1) of the Act.

19 As explained in Minister for Immigration and Citizenship v GKX18 (Jurisdiction) [2026] FCAFC 27 at 90, after reference to the Migration Litigation Reform Act 2005 (Cth) (at [76]), the language in s 476(1) and s 476A(1) is different as the provisions are to operate differently. Section 476(1) provides jurisdiction to the Federal Circuit Court which it would not otherwise have and s 476A(1) excludes jurisdiction from this Court, which it would otherwise have. The purpose was to “direct nearly all migration cases to the [Federal Circuit Court], to limit the Federal Court’s original jurisdiction in relation to migration cases and to direct migration cases remitted by the High Court to the appropriate lower court”: see the Explanatory Memorandum to the Migration Litigation Reform Bill 2005 (Cth) and Mokhlis v Minister for Home Affairs (2020) 94 ALJR 843; [2020] HCA 30 at 13.

20 Therefore, if the cancellation of the visa pursuant to s 140(1) of the Act is properly regarded as a migration decision, this Court will not have jurisdiction, but the Federal Circuit Court will and the proceedings could be transferred: s 32AB of the Federal Court of Australia Act 1976 (Cth); Whittaker v Minister for Immigration and Border Protection [2017] FCA 494 at [9]-19; BZX23 v Minister for Immigration, Citizenship and Multicultural Affairs (2023) 299 FCR 312; [2023] FCA 908 at 14.

21 However, if the cancellation pursuant to s 140(1) is not a migration decision, then this Court will have jurisdiction by way of s 39B of the Judiciary Act, which is not limited to a “decision”: Motor Trades Association of Australia Superannuation Fund Pty Ltd v Australian Prudential Regulator (2008) 169 FCR 483; [2008] FCA 828 at 492 35.

Is the visa cancellation under s 140(1), a migration decision?

22 A migration decision is defined in s 5 of the Act to mean:

(a) a privative clause decision; or

(b) a purported privative clause decision; or

(c) a non-privative clause decision; or

(d) an ART Act migration decision.

Each of which is relevantly defined in ss 474(2), 5E, 474(6) and 474A, respectively.

23 Relevantly, a privative clause decision is defined in s 474(2) of the Act. It “means a decision of an administrative character made, proposed to be made or required to be made … ”. Section 474(3) then provides that a reference to a decision includes the matters listed from subsection (a)-(j), which are expansive. These include, for example “doing or refusing to do any other act or thing”, “conduct preparatory to the making of a decision” and “a failure or refusal to make a decision”. It also includes in s 474(3)(b) “cancelling” certain matters, including a visa.

24 The meaning of “decision” is extended under the Act: s 474(3); Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180; [2016] HCA 29 at [65]-71. Therefore, although the definition of a privative clause decision is a decision of an administrative character and the first two requirements are in the same terms as the first two elements of a “decision to which this Act applies” from the Administrative Decisions (Judicial Review) Act 1977 (Cth), which means a “decision of an administrative character…” (s 3), the Act, by s 474(3) expands on the concept of a decision. It augments the meaning of a decision to include (without being exhaustive) a wide range of conduct including the “doing or refusing to do any act or thing”: Mokhlis at [11]. The combined effect of these definitions is to provide a very broad meaning of a migration decision: GKX18 at [25]; Explanatory Memorandum to the Migration Legislation Amendment (Judicial Review) Bill 1998 (Cth) (JR Amendment Bill) at [18].

25 The following authorities are relevant to whether this Court has jurisdiction.

Rani

26 Sackville J in Rani v Minister for Immigration and Multicultural Affairs (1997) 80 FCR 379; [1997] FCA 1493 considered the operation of s 140(1) in relation to the cancellation of a second applicant’s visa (or entry permit). The operation of s 140(1) of the Act as it then stood, was described as an “automatic cancellation” of the other person’s visa (Rani at 385C).

27 Sackville J observed that the “cancellation of the second person’s visa is effected by operation of the subsection itself, without the need for any further Ministerial action” (at 393G). This was consistent with the Minister’s submission outlined by Sackville J as being “cancelled by operation of law, not by a decision made by the Minister or his or her delegate” (at 391B).

28 The decision in Rani, was prior to the Migration Legislation Amendment (Judicial Review) Act 2001 (Cth) (JR Amendment) which introduced s 474 and commenced operation on 1 October 2001: Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476; [2003] HCA 2 at 48. The JR Amendment repealed and replaced Part 8 of the Act which was entitled “Judicial Review”. The new meaning of “decision” provided by the JR Amendment was to be given a wide meaning: see the Explanatory Memorandum to the JR Amendment Bill at [16]-[18].

29 Given the significant change in the Act, by way of particularly the JR Amendment and the Reform Act, care must be taken to not simply adopt the construction applied by Sackville J in Rani, in relation to the question of jurisdiction. The relevant provision being s 140(1), must be construed by reference to the text, in context. The amendments to the Act supply at least some of that context, as does the relevant Explanatory Memoranda. The extended definition of “decision” in s 474(3) of the Act did not exist, nor did the terms “migration decision” or “privative clause decision” exist, at the time of the decision in Rani. The amendments by the Reform Act went further, which together with the JR Amendment provides the legislative purpose for nearly all migration decisions, which is very broadly defined, to be directed to the (now) Federal Circuit Court.

Farah

30 In Farah v Minister for Immigration and Citizenship [2011] FCA 185 Jessup J was considering an appeal from the then Federal Magistrates Court of the primary visa’s cancellation which had been effected pursuant to s 109 of the Act. The secondary visa applicants (being the second, third, fourth and fifth appellants) being dependent on the primary visa were cancelled by s 140 of the Act. Relevantly, Jessup J stated as follows at [2]:

… Their visas depended upon their status as family members of the first appellant. Their visas were cancelled not by the delegate under s 109, but by operation of s 140 of the Act itself. Although they purported to apply to the Tribunal for a review of the delegate's decision to cancel their visas, the Tribunal held, rightly in my view, that it did not have jurisdiction to review the operation of s 140 of the Act. …

31 Unless the appeal was successful before Jessup J, the other appellant’s visas would remain cancelled by the operation of s 140 of the Act.

32 This conclusion stated by Jessup J that the (then) Migration Review Tribunal did not have jurisdiction for a review by operation of s 140 of the Act supports the arguments advanced that this Court has jurisdiction under the Judiciary Act. Although this decision is after the JR Amendment and the Reform Act there is no express consideration of the expanded definition of decision in s 474(3) and whether that was relevant to the operation of cancellation pursuant to s 140 of the Act.

Singh

33 The Full Court (Greenwood ACJ, Charlesworth and O’Callaghan JJ) in Singh v Minister for Immigration and Border Protection (2018) 265 FCR 411; [2018] FCAFC 162 was considering an appeal from the Federal Circuit Court which dismissed an application for judicial review of a Tribunal decision that affirmed a decision of a delegate of the Minister to cancel the appellant’s visa pursuant to s 137Q of the Act. The appellant’s husband was also granted a visa, dependent on his familial relationship with the primary visa appellant. The application to the Tribunal was by both the primary visa appellant and her husband: Singh at [19].

34 The Federal Circuit Court dismissed an application by the husband to be joined as a party to the proceeding because his visa was not cancelled by a delegate, but by operation of law of the Act: Singh at [30], [31], [34] and [43]. The Full Court’s reference to s 137Q in [34] appears to be a typographical error, as the Full Court later describes (at [51]) the cancellation of the husband’s visa being under s 137T. Section 137Q is the operative cancellation provision, which would have operated on the primary appellant’s visa. Then because of that cancellation, s 137T provides that should a person’s visa be cancelled under s 137Q, a visa held by another person (the husband) because of being a member of the family unit of the person, is also cancelled. Section 137T, rather than s 137Q, is “relevantly identical” to s 140(1): Singh at [42].

35 In considering this issue the Full Court observed that the submission was contrary to Farah, “in relation to the relevantly identical provisions contained in s 140” of the Act, which held that the dependent visa was cancelled by operation of law: Singh at [42]. The provisions within s 140 being referred to by the Full Court must be s140(1) and (3), given the discretionary terms of s 140(2) of the Act.

36 The Full Court also referred to and endorsed Shao v Minister for Immigration and Multicultural and Indigenous Affairs (2007) 157 FCR 300; [2007] FCA 18 (Lander J) in respect of a cancellation decision under s 137J of the Act. The Full Court held that these provisions provide a statutory form of cancellation of visas which do not require and thereby avoids any administrative decision and thereby any review of that decision: Singh at [50].

Thapaliya

37 Collier J in Thapaliya v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] FCA 1741 was considering an appeal from the Federal Circuit Court (Thap a liya v Minister for Immigration and Border Protection [2018] FCCA 3278 (Judge Egan) - FCCA Thapaliya) whereby Mr Thapaliya had brought proceedings for judicial review of a decision of the Minister’s delegate’s decision to cancel his former wife’s visa. Mr Thapaliya’s visa was dependent on the visa of his former wife, Ms Sapkota. Mr Thapaliya was the secondary visa applicant on the basis that he was a member of the same family unit as Ms Sapkota. Ms Sapkota’s visa was cancelled pursuant to s 128 of the Act and Mr Thapaliya’s visa was also cancelled (on the same day) pursuant to s 140(1) of the Act.

38 Mr Thapaliya sought judicial review by the Federal Circuit Court pursuant to s 476 of the Act of the cancellation decision of Ms Sapkota's visa (not the subsequent non-revocation decision or the cancellation of his visa), in circumstances where Ms Sapkota made no such judicial review application (and was not a party to the proceedings): FCCA Thapaliya at [7]. It also does not appear that Ms Sapkota sought review by the Tribunal. The Federal Circuit Court held that Mr Thapaliya could not seek review of the cancellation decision of Ms Sapkota’s visa, relying on Lee v Minister for Immigration and Citizenship (2007) 159 FCR 181; [2007] FCAFC 62 at 58 and with reference to s 478 and s 479 of the Act: FCCA Thapaliya at [12].

39 The Federal Circuit Court also held, relying on s 140(1) and the observations from Rani, that as Mr Thapaliya’s visa was cancelled by operation of s 140(1) and as such it was an automatic cancellation and there was no relevant migration decision amendable for review: FCCA Thapaliya at [9]-[13], particularly at [12].

40 This conclusion (FCCA Thapaliya) is also consistent with Zheng v Minister for Immigration [2010] FMCA 92 (Lloyd-Jones FM) at [20], where it was held that an automatic cancellation under s 137J of the Act, meant the court did not have jurisdiction to review that cancellation. However, unlike Zheng, FCCA Thapaliya was not expressly dismissed by reason of a lack of jurisdiction.

41 If the cancellation of Mr Thapaliya’s visa was not a migration decision, as that term is defined in the Act, then the Federal Circuit Court did not have jurisdiction. The separate issue of jurisdiction does not appear to have been the subject of argument on the appeal. The appeal (not in the original jurisdiction of the Court) turned on the construction of s 140(1) of the Act: Thapaliya at [19]. In this sense then, Thapaliya is not of assistance when considering the question of this Court’s jurisdiction. The issue of standing which was raised in Thapaliya was obiter, as the matter was determined by the construction of s 140(1) of the Act: Thapaliya at [32]. However, the Court referred to and relied on Farah at [2], on this issue: Thapaliya at [35] and [37]. Although the Court did not consider questions of jurisdiction, standing is an aspect of the positive law that defines the jurisdiction of the Court: Forestry Corporation of New South Wales v South East Forest Rescue Inc (2025) 99 ALJR 794; [2025] HCA 15 at 9.

42 This issue of standing does not arise in this matter as Ms Chinacalle is seeking to challenge the cancellation of her visa, which was pursuant to s 140(1) of the Act. Ms Chinacalle is not seeking to challenge the cancellation of Mr Ortega’s visa. Whether the cancellation of Ms Chinacalle’s visa was by operation of law or by way of a migration decision, Ms Chinacalle was the subject of the cancellation under s 140(1) of the Act.

Chou

43 The Full Court in Chou v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 286 FCR 459; [2021] FCAFC 130 (Griffiths, Lee and Abraham JJ) was considering an appeal from the Federal Circuit Court which dismissed an application for judicial review regarding two decisions of the Tribunal. The first, being a decision of the Tribunal dated 8 February 2018 affirming the decision of the delegate, regarding the first appellant’s visa cancelation pursuant to s 109 of the Act. The second being a decision of the Tribunal dated 9 March 2018, to affirm the second appellant’s visa cancellation pursuant to s 140(2) of the Act: Chou at [1], [20] and 60.

44 Relevantly, Griffiths and Abraham JJ stated the following regarding the operation of s 140(1), (2) and (3) of the Act (at [136]):

First, there is nothing in the statutory scheme of s 140 of the Migration Act which would suggest that s 140(3) intended to limit the availability of s 140(2) in the way contended for by Sebastian. Sections 140(1), (2) and (3) provide three distinct circumstances in which the cancellation of a visa may result in the cancellation of another visa. Sections 140(1) and (3) are mandatory cancellation provisions, which deal with situations where a person's visa is dependent on being a member of the family unit, or by the operation of s 78, on the cancelled visa. Section 140(2), in contrast, provides a discretionary power to the Minister to cancel a person’s visa if the statutory criteria that the “person holds a visa only because the person whose visa is cancelled held a visa”.

45 The Court held that s 140(3) was not a “power” as the visa “must” be cancelled if the provision applied. This, the Court held, created an obligation to cancel, rather than a “power” to do so: Chou at [139], which was different to s 140(2) of the Act: Chou at [140].

BWS22

46 Button J in BWS22 v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 387 was considering an appeal from the Federal Circuit Court, which dismissed the appellant’s application for judicial review of the Tribunal’s decision which affirmed the cancellation of his visa pursuant to s 116 of the Act. Relevantly, the appellant had arrived in Australia with his two half-brothers, one of which was granted a visa dependent on the appellant’s visa. The argument regarding the half-brother was that he was entitled to procedural fairness, before his visa was cancelled under s 140(1) of the Act: BWS22 at [54]-[57]. By this failure, it was contended that the appellant had also by a “flow on” been denied procedural fairness. This argument was rejected: BWS22 at [70].

47 However, Button J did consider whether procedural fairness was required under s 140(1), in any event. In determining that the provision did not, Button J made the following relevant observations:

… [t]here was no need for s 140(1) to do likewise because the cancellation is automatic; there is no discretion to exercise and no decision to make that might otherwise be notified to the person concerned: at [73]

…because [the] cancellation under s 140(1) operates automatically: at [74]

48 And at [76] concluded:

The cancellation of a visa pursuant to s 140(1) has been described as cancellation, not by the decision of a delegate, but “by operation of s 140 of the Act itself”: Farah at 2. Section 140(1) does not require any decision to be made, or any discretion to be exercised. The cancellation of the half-brother's visa was an automatic consequence of the decision made under s 116(1AA) and, as such, even if it could be said in the abstract that an obligation of procedural fairness was owed (which is itself a doubtful proposition as no "power" to cancel is involved: Chou at [139]), I do not accept that the content of that duty would require that the half-brother be notified of the prospect that the appellant’s visa may be cancelled.

49 The conclusion by Button J was that the cancellation by s 140(1) was by operation of the provision itself, relying on Farah. These observations are again obiter and, in a context, where the matter being considered was an appeal from the Federal Circuit Court.

The overall position from the Authorities

50 Given the substantial amendments to the Act, in this context, Rani can be put to one side in relation to a consideration of this Court’s jurisdiction under the Act. None of the other decisions were ones invoking this Court’s jurisdiction under s 39B of the Judiciary Act. All of them were appeals from the Federal Circuit Court (or previously the Federal Magistrates Court), which after the Reform Act had a very broad jurisdiction. None of the authorities expressly considered this particular question of jurisdiction, or the meaning of a migration decision in relation to what is termed an automatic cancellation.

51 However, even though the Full Court’s decision in Singh was on an appeal, the Court expressly observed that provisions, including s 140(1) and (3) of the Act, were a form of statutory cancellation which did not involve an administrative decision and thereby would not include any review of that decision. Singh considered that ss 137J, 137T and 140 were all of the same kind of statutory form of cancellation provision without any relevant distinction: Singh at [50]. Although there are textual similarities between s 137T(1) and s 140(1), the statutory text of s 137J is different. Chou went further holding that the cancellation under s 140(3) was not a “power” as the visa must be cancelled (such reasoning would seem applicable to s 140(1) given that both s 140(1) and (3) are mandatory (at [136]): cf Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333; [2018] HCA 2 at 46, regarding s 501(3A), which is described as a cancellation “power”.

52 Even though these “automatic” cancellation provisions under the Act do provide a statutory requirement of cancellation, there is a threshold which must be met before the cancellation operates. Section 137J requires a s 20 notice under the Education Services for Overseas Students Act 2000 (Cth) to be sent, and the visa is cancelled at the end of the 28th day unless the non-citizen complies with either subsection (2)(a) or (b). Section 137T provides that if the first person’s visa is cancelled under a specific provision, being s 137Q, and that the secondary visa is held because of being a member of the family unit of the first person, then the visa of the secondary holder is also cancelled. Section 140(1) requires the primary visa holder’s visa to be cancelled under certain identified provisions and the secondary visa holder must hold their visa because of being a member of that family unit of that first (primary) person, then that visa is also cancelled. Although such matters may be able to be ascertained objectively, it is difficult to comprehend that such cancellations operate without some intervention by a departmental officer. The letter to Ms Chinacalle dated 13 August 2024 advising of the cancellation is signed off by a departmental officer. The letter refers to the cancellation of Mr Ortega’s visa, that Ms Chinacalle was granted her visa because she was a member of the family unit of Mr Ortega and therefore Ms Chinacalle’s visa was also cancelled. That is, there is consideration of the threshold requirements for s 140(1) to operate. On this basis, and unconstrained, the cancellation under s 140(1) does appear to be within the extended definition of decision, within s 474(3)(b) or (g) of the Act.

53 On the satisfaction of such objective matters, the Act provides that the relevant visa must be cancelled, it does not provide a discretion. However, the terms of s 474(3) do not contain any express requirement that the “decision” must be a discretionary decision. To the contrary, s 474(2) provides that a privative clause decision (one type of migration decision) is one that is “required to be made ” under the Act or under the Regulations “whether in the exercise of a discretion or not”. Being able to review such “decisions” in the Federal Circuit Court is consistent with the purpose of the JR Amendment and the Reform Act.

Conclusion on the Court’s jurisdiction

54 Having made those observations, however, I am bound by Singh and Chou. The direct implication of those decisions is that s 140(1) operates as an automatic cancellation and is effected by operation of law. The relevant provisions, which included s 140(1), provide a statutory form of cancellation of visas which do not require any administrative decision and thereby avoids any review of that administrative decision: Singh at [50].

55 Therefore, on this basis, this Court does have jurisdiction under s 39B of the Judiciary Act.

Was the Applicant’s visa cancellation by operation of law?

56 Ms Chinacalle seeks a declaration that her visa was not cancelled by operation of law. She submits that despite the cancellation of her former partner's visa, she continues to hold a valid visa.

57 The submission is based on a contention that her visa is not subject to the terms of s 140(1) because, at the time of the cancellation of Mr Ortega's visa, she was no longer a member of his family unit. Therefore, so the submission is advanced, her visa was not one answering the description of visas which would also be cancelled by operation of law.

58 Relevantly s 140(1) states 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.

59 The Act defines member of the family unit which relevantly includes that a person is a de facto partner of another person: see s 5 of the Act and reg 1.12(2)(a) of the Regulations.

60 It is accepted that Ms Chinacalle was the de facto partner of Mr Ortega at the time of applying for the visa and was no longer his de facto partner at the time his visa was cancelled. It is also accepted that Ms Chinacalle gave appropriate notice to the Department that she was no longer the de facto spouse of Mr Ortega, prior to the cancellation of Mr Ortega’s visa.

61 Ms Chinacalle’s submissions emphasise the current tense in the definition of member of the family unit, particularly by use of the word “is” which is submitted to require a present state of being a de facto partner. This is described as a temporal requirement, that the person remain a member of the family unit, for the operation of s 140(1) of the Act. The Applicant also relies on the earlier decision of Rani.

62 The Minister submits that s 140(1) cancels a secondary visa holder’s visa which was obtained on the basis that he or she was a member of the family unit, it does not require the secondary visa holder to remain a member of the family unit of the primary visa holder. It is not, according to the Minister’s submission relevant to enquire whether the secondary visa holder remains or is a member of the family unit at the time of cancellation.

Principles of construction

63 The principles of statutory construction were not in dispute. The starting point for construing a statutory provision is the text of the statute understood in context, whilst regard is had at the same time, to its statutory purpose. In this sense, context is an inquiry made at this first stage and in its widest sense: see Palmanova Pty Ltd v Commonwealth of Australia (2025) 99 ALJR 1362; [2025] HCA 35 at [4]-5; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34 at 14; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]-70; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 at 408 (Brennan CJ, Dawson, Toohey and Gummow JJ); R v A2 (2019) 269 CLR 507; [2019] HCA 35 at 33 and 148.

The text in context - s 140(1) of the Act

64 Section 140 commences with reference to “if a person’s visa is cancelled”. That cancellation has to be pursuant to certain provisions under the Act, which includes s 116 of the Act. That section is a broad cancellation power and relevantly includes (together with the Regulations) when a visa is cancelled because of a written request to cancel that visa. This is the threshold for the section to apply. There must first be a cancellation of a person’s visa (the first person), pursuant to a certain provision (which includes s 116 of the Act). That is satisfied by Mr Ortega’s written request for his visa to be cancelled and the subsequent cancellation pursuant to s 116(1)(g) of the Act and reg 2.43(1)(g) of the Regulations.

65 Then, “a visa held by another person because of being a member of the family unit of the person is also cancelled”. This is a reference to a visa “held”, past tense, because of being a member of the family unit. The natural textual reading is that the second person (another person) was granted the visa because of being a member of the family unit of the first person. The requirement to “being” a member of the family unit in this context, is not a reference to the second person currently being a member of the first person’s family unit. It is a reference to the second person having been granted and held the visa because of being a member of the first person’s family unit. The textual inquiry is not directed to the current state of affairs of the second person, but to the state of affairs of that person when the visa was granted. Reading in the definition of member of the family unit does not change the meaning of the substantive cancellation provision: (Kelly v R (2004) 218 CLR 216; [2004] HCA 12 at 103; SkyCity Adelaide Pty Ltd v Treasurer of South Australia (2024) 419 ALR 361; [2024] HCA 37 at 32.

66 This construction of s 140(1) is consistent with it being an automatic cancellation provision. This provision operates prospectively. It is this prospective operation which Ms Chinacalle submitted supported her construction. The provision operates once the threshold issue is satisfied (the first person’s visa is cancelled) and the second person’s visa having been granted on a particular basis (being a member of a family unit). Such visas have a derivative quality; these are granted on the basis that the person was a member of the first person’s family unit. Such a provision expressly referring to that derivative quality, is then to operate. Given that this was a basis for the grant of the visa, it is a matter which would be known to the Minister, as would the cancellation of the first person’s visa. This provision does not create a discretion nor does it require any inquiry as to the second person's current circumstances, before it operates. That the provision operates prospectively does not support a construction of requiring the derivative visa holder to remain a member of the family unit, at the time of the first person's visa cancellation.

67 There is no textual or contextual reference in s 140(1) which refers to the second person no longer being a member of the first person’s family unit, or the reason for that cessation. Again, such matters would require an inquiry which is contrary to the automatic or mandatory operation of the provision.

68 Where s 140(2) applies it creates a discretion to cancel the second person’s visa, in circumstances where s 140(1) does not apply. Being discretionary, s 140(2) operates differently.

69 The operation of this cancellation provision may act harshly in particular circumstances: see Rani at 400F. However, it was accepted that Ms Chinacalle, being a person who is no longer a member of the family unit which was the source of the original grant of their visa, can apply for another visa. That can be done prior to the cancellation of the first person’s visa.

70 Finally, Ms Chinacalle relied on various parts of the reasoning in Rani to support the construction she advanced. However, as was accepted by Ms Chinacalle in argument, in Rani the wife (who held the secondary visa) continued to be the wife of the primary visa holder, at the time his visa was cancelled. The reasoning of Sackville J in Rani at 399 supports the construction arrived at above: also see Thapaliya at [22]-[24] and [29] and Chou at [136].

CONCLUSION

71 On the basis of the present authorities this Court does have jurisdiction to consider this matter, it involving a question under s 140(1) of the Act.

72 The proper construction of s 140(1) is that it cancels a secondary visa which was held by that other person because of being a member of the family unit of the first person, at the time the secondary person’s visa was granted. If that first person’s visa is cancelled (on certain bases) then that secondary person’s visa is also cancelled.

73 On these bases, Ms Chinacalle’s application must be dismissed with costs.

| I certify that the preceding seventy-three (73) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Wheatley. |
Associate:

Dated: 16 April 2026

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