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Visa Cancellations Under Section 116 of the Migration Act

Visa cancellations are governed by Section 116 of the Migration Act, which gives the Minister and his delegates the power to cancel a visa in the following circumstances:

i. Breach of visa conditions;
ii. Failure to comply to visa conditions;
iii. Purposely providing incorrect or bogus information; or
iv. For the health, safety and good order of a segment of the Australian community.

When a visa is canceled under Section 116, the visa holder generally has the right to internally request the Minister of Home Affairs to revoke the cancellation of the visa (Migration Act, Section 501). This in effect provides the visa holder with procedural fairness and the opportunity to be heard as to why the visa should not be canceled.

Cancellations based on criminal charges

Section 116(1)(e) allows for the cancellation of a visa where the holder poses a risk to the health, safety or good order of the Australian community, or to an individual within the Australian community. There has been a growing number of visa cancellations under Section 116(1)(e), based on criminal charges that are yet to be finalised in state or territory criminal sittings. Many of these cancellations have been in relation to allegations of domestic violence. When a visa is canceled under Section 116(1)(e), the holder does not have the right to request the revocation of the cancellation.

How is a visa cancellation decided?

When deciding whether to cancel a visa under Section 116(1)(e), a decision maker may consider the below.

a. The purpose of the visa holder’s travel and stay in Australia and whether the visa holder has a compelling need to travel to or remain in Australia;

b. The extent of the person’s compliance with visa conditions, which could include whether the visa holder had breached any visa conditions prior to the visa cancellation;

c. The degree of hardship that may be caused (financial, psychological, emotional or other hardship) by the cancellation;

d. The circumstances in which the grounds for cancellation arose. If cancellation is being considered because of a relationship breakdown, whether the relationship has broken down as a result of family violence, or whether the relationship is still ongoing;

e. The past and present conduct of the visa holder towards the Department of Home Affairs;

f. Whether a breach relates to Regulation 2.43(1)(la) of the Migration Regulations 1994 by a Subclass 457/ 482 visa holder;

g. Whether there are mandatory legal consequences. For example, whether cancellation would result in the visa holder being unlawful and subject to detention;

h. Whether there would be consequential cancellations under section 140 of the Act;

i. Whether any international obligations would be breached as a result of the cancellation;

j. Any other relevant matters including:
i. Whether the visa holder has primary care of child/ren;
ii. The best interests of a child;
iii. Expectation, ties and protection of the Australian community; or
iv. Rehabilitation and future self-improvement of the visa holder.

Merits Review of visa cancellations

If a visa is canceled under s 116(1)(e), the holder is entitled to request a Merits Review by the Administrative Appeals Tribunal. The Tribunal is an independent body, which has the power to affirm, substitute or remit a decision made by the minister or his delegates. The Tribunal will review all aspects of the decision and may also request additional supporting documents prior to deciding whether the decision was appropriate in the circumstances. It is important that the applicant understands the relevant legislative considerations when pursuing a Merits Review.

Judicial review of visa cancellations

If the Tribunal affirms the decision to cancel a visa, the visa holder has 35 days from the date of the decision to file a Judicial Review application with the Federal Circuit Court. The Court may review a decision only in order to determine whether a jurisdictional error has been made. The court does not have the power to overturn the decision to cancel a visa merely because it would have made a different decision. If the court finds a jurisdictional error has been made, this may or may not result in the visa cancellation being altered. Courts sometimes find a jurisdictional error was made in the original decision, but then arrive at the same decision merely on a different basis.

If you need legal advice in relation to an immigration law matter, please contact Go To Court Lawyers.

By Tanguy Mwilambwe, Senior Associate/Registered Migration Agent

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