Analysis of Migration Law and Validity of Notice of Intention to Consider Cancellation

This article discusses the provisions of Migration Act 1958 related to Notice of Intention to Consider Cancellation (NOICC) under section 107 and the discretionary powers of the minister under section 109. It also analyzes the validity of NOICC and the importance of considering specific circumstances under reg 2.41 of Migration Regulations 1994. The article uses a scenario to explain the application of these provisions.

Running Head: MIGRATION LAW
Migration Law
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Question 1
There are several provisions which are provided by the Migration Act 1958 (cth)
towards governing the authenticity of information which is provided by a person for
making a visa application. These provisions are provided through section 101-105 of the
Act. Further it has been provided by section 107 of the CA that the minister has the right
to issue a Notice of Intention to Consider Cancellation (NOICC) to any person who is
believed to have found to violate the provisions of section 101-105 of the Act1. It has
been specifically provided by the provisions of section 101(b) of the Act that a visa
applicant while providing information in the visa form must ensure that the information
which is provided is genuine and correct2. It has been provided by the scenario that the
Non-citizen who currently holds a Subclass 866 protection visa has visited Iran twice for
a period of two months after the grant of the protection visa. With respect to the
information provided by the non-citizen for the protection visa it was stated that if he
returns to Iraq again his life would be at risk as he had been threatened on various
occasions by terrorists and had not been provided with adequate support for the local
police. However the holder has returned safely from his visit on both occasions. This
situation makes it clear to the minister that the incorrect information had been provided
by the Non citizen which is a breach of section 101(B) and thus for this a NOICC can be
issued under section 107 of the Act.
Question 2
1 Migration Act 1958 (cth) s 107.
2 Migration Act 1958 (cth) s 101.

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A NOICC which has been provided under the rules of section 107 of the Act has to be
made in a valid manner. One of the recent cases which deal with the matter in relation
validity of NOICC is the case of Zhong v Minister for Immigration and Citizenship3. The
issue before the court in this case was to determine the situation and way in which a
NOICC has to be made by the department. It had been stated by judges in this case
that the NOICC sent pursuant to section 107 must assert the specific section which has
been violated by the holder of a visa. It had also been ruled by the case that the notice
has to be specific and particularized. The notice must also be sent only when it has
been concluded by the delegate that a provision of the Act has not been complied with
by the visa holder. In this case the NOICC which had been issued by the minister only
contained the allegation that the holder has violated the provisions of section 101 of the
Act. However the court held that in order for the notice to be valid under the provisions
of section 107 of the Act it had to particularly state that the provisions of section 101(b)
have been violated any the visa holder.
It has been provided through the scenario that the NOICC which has been provided to
the non-citizen has specifically stated that the defendant has particularly violated the
rules under section 101(b) of the Act. The reason for the violation has also been
provided by the NOICC that the non citizen had stated in interview for the protection
visa that if he returns to Iraq again his life would be at risk as he had been threatened
on various occasions by terrorists and had not been provided with adequate support for
the local police. The Non-citizen who currently holds a Subclass 866 protection visa has
visited Iran twice for a period of two months after the grant of the protection visa.
3Zhong v Minister for Immigration and Citizenship [2008] FCA 507

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However the holder has returned safely from his visit on both occasions. This situation
makes it clear to the minister that the incorrect information had been provided by the
Non citizen which is a breach of section 101(B). Section 107 states that the minister has
the right to issue a Notice of Intention to Consider Cancellation (NOICC) to any person
who is believed to have found to violate the provisions of section 101-105 of the Act.
The notice has also provided a chance to the non citizen to dispute the non-compliance
which has been alleged which meets the requirements set out under Subsection 107(1)
(i) of the Act. The NOICC had also asked the holder to provide evidence that why the
minister should not cancel their visa which meets the requirement provided through
107(1)(i)(b)4. There is also some specific information which the NOICC must contain
such as, it must specify the time within which the response is to be made by the visa
holder and the time has to be of 14 days or a reasonable time depending upon the visa.
The notice must also make the holder aware that their obligations under the provision of
104 and 105 of the Act will not have any affect because of the notice. The effect which
the provisions of section 108, 109, 111 and 112 will have in relation to the notice also
has to be communicated to the visa holder. The consequences which the visa holder
will face of he or she does not respond to the notice must also be provided through the
NOICC. Further the visa holder has to be informed through the NOICC that they cannot
provide any information which is incorrect while providing a response in relation to the
section 107(1)(b) of the Act.
The notice has clearly mentioned the circumstances which the minister considers to
have violated the rules provided through section 101(b) of the Act. The notice has also
4 Migration Act 1958 (cth) s 107.

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asked for response from the visa holder. The particular information which has been
provided in an incorrect manner referred to as questions 42-45 in NOICC has also been
provided. Therefore after taking into consideration the requirements of a valid notice
under section 107 of the Act and the provisions provided by the Zhong v Minister for
Immigration case it can be stated that a valid notice has been provided by the Minister.
Question 3
Where a valid NOICC has been made by the minister it does not mean that the decision
which has been taken after the consideration of the response is a legally correct
decision. The decision f the minister in relation to the cancellation of visa after providing
the NOICC can be challenged as it was done successfully in the case of Vata v Minister
for Immigration & Anor5.
Section 109 of the MA provides discretionary powers to the minister for cancelling the
visa of a person. This means that the visa of the person may be cancelled by minister
based on his own discretion by complying with the provisions of section 109 of the Act.
This has also been confirmed by the provisions of Zhao v MIMA6.
It has been provided through the rules of section 109 of the Act that the minister may
cancel the visa of a person where it is found that incorrect information has been
provided by the visa holder while the application of the visa had been made. It is further
added by the rules under subsection 109(1) that the minster after considering pursuant
to the provisions of section 108, the reply provided by the visa holder in relation to
5 Vata v Minister for Immigration & Anor (2015) FCCA.
6 Zhao v MIMA [2000] FCA 1235.

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section 107(1)(b) may cancel the visa if the minister is satisfied that the non compliance
as stated in the NOICC has been made by the holder. It has further been provided by
subsection 109(1)(c) of the Act that the minister while analyzing the response under
section 107(1)(b) has to also take into account specific circumstances7. These
circumstances are provided under reg. 2.41 of the Migration Regulations 1994 (Cth).
The regulation states that the minster has take into consideration the extent to which
correct information has been provided, the authenticity of the content of thee
documents, incorrect decision while the visa was provided, the circumstances of the
non-compliance, the status quo of the visa holder, subsequent behavior of the visa
holder, previous non-compliance, time passed after non compliance and breach of law
by the visa holder8.
The situation states that Fadhil Hamdani who is described as a visa holder in the given
situation is holding a protection visa. The protection visa had been provided to the visa
holder based in the information which had been provided by him to the department. In
relation to getting the visa he has stated the department that if he returns to Iraq again
his life would be at risk as he had been threatened on various occasions by terrorists
and had not been provided with adequate support for the local police. This is because
he had been working for the US military and had been provided threat that if he does
not leave the job he will be killed. In relation to the threat the car and house of the visa
holder has also been alleged burnt by the terrorist and relevant evidence in support of
the information has also been provided. While the protection visa was granted the
department was satisfied that the visa holder had provided correct information. In order
7 Migration Act 1958 (Cth) s 109.
8 Migration Regulations 1994 (Cth) reg 2.41.

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to show that the information provided by the holder was incorrect within the meaning of
section 101(b) of the MA the minister has relied on the fact that The Non-citizen who
currently holds a Subclass 866 protection visa has visited Iran twice for a period of two
months after the grant of the protection visa. However the holder has returned safely
from his visit on both occasions. The creates an evident contradiction between the
information provided during the allocation of protection visa and the present situation of
the holder which needs to be considered under the provisions of reg 2.41 of the MR. In
response to the NOICC the holder has replied that he visited his home country in
situation where his mother was admitted to hospital and where he had to marry his
present wife. The holder has also supplied proof regarding the hospitalization of his
mother and his wedding. It has also been provided by the holder that a very low profile
wedding was conducted in Iraq. However the minister has still cancelled the visa citing
the fact that the country does not have any obligation to protect the holder under the
PAM3 ‘Visa Cancellation – General cancellation powers. The minister did not give any
relevance to the provisions of reg 2.41 while deciding whether incorrect information had
been provided or not. Thus it can be stated after analyzing the circumstances of the
case that the decision of the minister that the holder has no complied with section
101(b) is not appropriate.
Question 4
The Acts Interpretation Act 1901 through section 15AA states that meaning to the words
of a provisions have to be provided in the light of the objective and purpose if the

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decision9. It has been provided by the rules of section 109 that the minster after
considering pursuant to the provisions of section 108, the reply provided by the visa
holder in relation to section 107(1)(b) may cancel the visa if the minister is satisfied that
the non compliance as stated in the NOICC has been made by the holder. It has further
been provided by subsection 109(1)(c) of the Act that the minister while analyzing the
response under section 107(1)(b) has to also take into account specific circumstances.
Further it has been stated through section 109(b) that the minister must cancel the visa
where circumstances are such that any provisions of the regulation provide for the visa
to be cancelled. However the MR does not provided any specific regulation under which
the visa must be cancelled under section 109 of the Act. Thus the primary obligation of
the minister is to pay attention to the objective of the legislation and they must consider
the provisions of reg 2.41 of the MR as well as reg 2.42 which deal with general
cancellations rules10. Thus by not taking into consideration properly the reg 2.41 and
where no situation is provided under reg 2.42 to cancel the visa, the minister actually
cancelled the visa the delegate did not properly apply the statutory power under section
109.
9 Acts Interpretation Act 1901 (Cth) s 15AA.
10 Migration Regulations 1994 (Cth) reg 2.42.