The Department of Home Affairs (the Department) have various powers to cancel visas under the Migration Act 1958 (the Act). This most commonly includes “character cancellations” and a broader “general cancellation” power.
This article discusses the general cancellation powers under s 116 of the Act, and outlines the process when the Department are considering exercising this power.
What are the general cancellation powers?
The general cancellation power is set out in section 116 of the Act, which outlines various grounds on which a visa may be cancelled. This power is discretionary and typically exercised by a Delegate of the Department (a separate power exists for the Minister to exercise general cancellation powers personally). It may also be exercised with respect of both temporary and permanent visas.
Some grounds that commonly arise in s 116 cancellations include when:
- a visa was granted based (wholly or partly) on facts or circumstances that did not exist;
- a visa was granted based (wholly or partly) on facts or circumstances that is no longer the case, or no longer exists;
- a current visa holder’s application contained incorrect correct information;
- the visa holder has not complied with their visa’s condition;
- the visa holder presents a risk to an Australian individual or the community.
There are also very situation specific circumstances where an individual’s visa may be considered for cancellation for identity, security, or custody purposes; or for breaches of other legislation, or a visa holder not having genuine intentions to comply with the requirements for their visa.
Receiving a Notice of Intention to Cancel
If there appear to be grounds for cancellation, the visa holder will firstly be issued with a Notice of Intention to Consider Cancellation (NOICC) outlining:
- the precise grounds on which the Department will consider cancellation, and information with which this is based;
- the reasons why the Department believes there are grounds to cancel the visa;
- the timeframe the holder has to respond.
The NOICC is a critical opportunity to respond to the Department’s claims, and can be made in writing, at an interview (between the visa holder and an officer), or by telephone. Generally unless you are in immigration clearance, you would be invited to provide the response in writing.
Responding to a NOICC
It is important to know that the power to cancel a visa under section 116 is mostly discretionary. In other words, even if there are grounds that the visa holder cannot deny, it is still possible to avoid a cancellation.
The decision-making process therefore involves 2 steps:
- are the grounds to cancel the visa established; and
- if yes, should the visa be cancelled?
Under Departmental policy, in deciding whether to cancel a visa under section 116, the Minister’s delegate will consider and give weight to 10 matters:
- the purpose of the visa holder’s travel to and stay in Australia;
- the extent of compliance with visa conditions;
- the degree of hardship that may be caused to the visa holder and any family members;
- the circumstances in which the ground for cancellation arose;
- the visa holder’s past and present behaviour towards the Department;
- whether there are other persons in Australia whose visas would, or may, be consequently cancelled;
- whether there are mandatory legal consequences to a cancellation (eg. the likelihood of indefinite detention);
- whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation (eg. the best interests of children);
- whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations; and
- any other relevant matters.
If a delegate is considering cancellation of a permanent visa, they will also consider whether strong family, business or other ties to Australia exist.
Ultimately, it is the visa holders’ goal to convince the Minister’s delegate that the alleged circumstances giving rise to cancellation do not exist, or that despite such grounds existing, the reasons to cancel the visa are outweighed by reasons not to.
Timeframe to respond
Most people respond in writing. In such circumstances, the timeframe to respond to a NOICC varies, if you are:
- in Australia – you will have 5 working days to respond; or
- outside Australia – you will have:
- 5 working days to respond if the cancellation is being considered by the post (i.e. Embassy / Consulate) that the visa holder is in; or
- 28 days otherwise.
The period of time time for response starts on the day after the date with which the NOICC is taken to have been received. If the period for response ends on a weekend or public holiday, the period for response will end the next working day.
The above period for response can be extended by 5 working days. Under the legislation this can only be done once.
Receiving a decision and next steps
The delegate will consider your response (or lack of) and decide whether to cancel the visa or not.
If the visa is cancelled, it applies immediately. If the former visa holder is in Australia, they become an ‘unlawful non-citizen’ and are liable to be detained. It is important at that stage to act quickly and seek assistance on available options.
Importantly, it may be possible to appeal the cancellation decision to the Administrative Appeals Tribunal. There are strict time frames associated with this.
The Department have broad powers when it comes to general visa cancellations. Given the complexity in addressing visa cancellations and the potential serious ramifications if not addressed properly, it’s often worth seeking professional advice about what to do.
Feel free to contact us by email at [email protected] or phone (03) 9016 0484 for information on how we can assist you.