Cancellation Powers of Migration Act 1958 for Visa Cancellation

This document discusses the most likely cancellation powers of the Migration Act 1958 that the Department of Home Affairs would rely on to consider the cancellation of a visa. It also explains the time limits for responding to the Notice of Intention to Consider Cancellation and the requirements for a valid Notice.

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1. What is the most likely cancellation power(s) of the Migration Act 1958 that the Department
of Home Affairs would rely on to consider the cancellation of Linda’s visa and why?
A power is available to the Minister of Immigration to cancel the reason granted to Linda that
she had provided false information or if she had provided false or bogus documents while
making the visa application. The power to cancel the visa in accordance with section 109 is
available when it is revealed by the Department of Immigration and Citizenship that the person:
 Had provided a false document or a bogus document to the Department of Immigration
and Citizenship;
 Did not answer or had incorrectly answered the questions on visa application form or on
the passenger card of the person;
 Failed to advise the Department of Immigration and Citizenship that the answers or the
information that has been given in the visa application is no longer current as a result of a
change in circumstances or the information was incorrect when it was provided by the
person.1
The law provides in this regard are the fact that the person did not knew that the information was
incorrect or regarding the fact that the document was bogus does not mean that the visa granted
1 Aronson, M and Groves, M, Judicial Review of Administrative Action (Thomson Reuters 5thed 2013)

to the person is not going to be canceled, however, it is a relevant consideration at the time of
making a decision if the visa granted to the person should be canceled or not, by the Department
of Immigration and Citizenship.
Section 103 of the Migration Act prohibits the noncitizens from presenting their bogus
document to a decision-maker or a tribunal that is performing a function or purpose under the
Migration Act.
2. In the event that Linda receives the Notice of Intention to Consider Cancellation, what are the
time limits that Linda has to respond to the Notice of Intention to Consider Cancellation? Is it
possible to obtain an extension of time to respond to the Notice of Intention to Consider
Cancellation?
When it appears that there are grounds present for the cancellation of the visa granted to a person
under section 109 of the Migration Act, 1958 it is available to the Department of Home Affairs
to send a Notice of Intention to Consider Cancellation which provide a chance to get person to
comment on the information. However in this regard, there is the timeline for doing so and the
response should be written in English.2 The response should be received by the department
within a certain time frame, along with all the relevant evidence on which the person wants to
rely upon. Once this timeline is over, the delegate can make a decision on the basis of the
information that is available with the department. In this regard, there are certain situations
where the Notice of Intention to Consider Cancellation can be issued by the Department to a visa
2 Bagaric M; K, Boyd; P Dimopoulos; S Tongue; J Vrachnas, Migration and Refugee Law in Australia: Cases and
Commentary (Port Melbourne: Cambridge University Press, 2007)

holder in Australia.3 There are a number of different basis for the cancellation of visa provided
by the Migration Act, 1958. This includes the provision of incorrect information, providing false
information or bogus documents for misleading the Department.
In most of the cases, a prior warning is given to the visa holders regarding the intention of the
Department to cancel the visa and also an opportunity is given to the person to respond. The time
frame however varies and in most of the cases, the time of five working days is given from the
day from which the person is perceived to have received the Notice. Sometimes the person may
send the information after the expiry of the time limit and the Department of Home Affairs may
still take the information into account if a decision has not yet been made by the department.4
Therefore, if the time limit given corresponding to the Notice has expired and the Department of
Home Affairs had refused to extend the time limit, it is still possible to send in information and
hope up that it will be received by the department before they have made the decision.
According to Reg 2.44 (2)(a), a period of 5 days is given to the visa holder for giving comments.
Similarly, it has been provided by Reg 2.44(3) that an extension of five working days can be
given to the visa holder for giving comments on the Notice of Intention to Consider Cancellation.
The Notice of Intention to Consider Cancellation makes the person to respond to two questions.
The first question is if the person had passed the can character test. 14 days are given from the
date of notice for answering this question. The second question is if the reason granted to the
person should be canceled? 28 days are given from the date of notice for answering this question.
3 Crock M; B Sau; A, Dastyari; Future Seekers II: Refugees and Irregular Migration in Australia (Federation Press
2006)
4 Vrachnas J; K Boyd; M Bagaricand; P Dimopoulos; Migration and Refugee Law: Principles and Practice in
Australia (Cambridge University Press, 2008)

3. What must a valid Notice of Intention to Consider Cancellation include?
The Department of Home Affairs sends the Notice of Intention to Consider Cancellation along
with other documents like the criminal record of the person. Then the department asks their
person to comment on the information. Then an Issues Paper is prepared by the Department. This
Issue Paper contains all the relevant information that has been collected by the Department of
Home Affairs from the person from other sources. This Issue Paper is given to the decision-
maker.5
Section 107 describes the procedure that needs to be followed by the Minister if the Minister
considers that a particular holder of visa failed to comply with the provisions of s101. It is to
make sure that a chance is provided to the visa holder to show cause why the visa should not be
cancelled.
In the present case, Linda Wang had told one of her coworkers that while making an application
for visa, she had submitted to fake IELTS test. Now she suspects that the coworker may have
informed the Department of Home Affairs. It needs to be noted that according to section 103, for
noncitizen should not provide a bogus document or cause such a document to be given. At the
same time, it has been provided by section 109 of the Migration Act that the Department of
Immigration and Citizenship has the power to cancel her visa on the grounds of providing
incorrect information or bogus documents.
5 Pearce, D and S Argument, Delegated Legislation in Australia, (LexisNexis 4thed, 2012)

Bibliography
Aronson, M and Groves, M, Judicial Review of Administrative Action (Thomson Reuters 5thed
2013)
Bagaric M; K, Boyd; P Dimopoulos; S Tongue; J Vrachnas, Migration and Refugee Law in
Australia: Cases and Commentary (Port Melbourne: Cambridge University Press, 2007)
Crock M; B Sau; A, Dastyari; Future Seekers II: Refugees and Irregular Migration in Australia
(Federation Press 2006)
Pearce, D and S Argument, Delegated Legislation in Australia, (LexisNexis 4thed, 2012)
Vrachnas J; K Boyd; M Bagaricand; P Dimopoulos; Migration and Refugee Law: Principles and
Practice in Australia (Cambridge University Press, 2008)