Visa Compliance and Cancellation

This document discusses visa compliance and cancellation powers under section 501 of the Migration Act 1958. It explains the process of notice of intention to consider cancellation and the constitution of a valid notice. The document also provides information on how to respond to allegations and the consequences of visa cancellation.

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Visa Refusal
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Visa compliance and cancellation
Question One: Cancellation Powers
The Department of Home Affairs can rely on Section 501 of the 1958 Migration Act to cancel
or refuse to cancel a visa. This power is vested on the Minister. In addition, Direction No. 65
also uses the term “decision maker” hereby meaning a minister or an Administrative
Appeals Tribunal has the ability to exercise their powers under section 501 of the Migration
Act 1958. Following the 2 stage decision-making process, the Department can decide to
cancel her visa because of the thresholds set under section 501 of the Migration Act. From
her comments, she indicates that she submitted fake IELTS test during her application.1 This
is a sufficient ground that will make the department cancel her Visa because she has failed
the character test. While applying for a visa, one must provide accurate, true and reliable
information. Any form of incorrect information leads to cancellation of a visa. Under
Direction No. 65, the department should determine whether a Visa holder is has a good
character or not. For this to be considered, this directive gives further guidance by stating
that relevant circumstances have to be taken into consideration- including a complete
picture of the person’s character.2 These determinations are based on one’s past or present
conduct. Falsification of documents is a criminal offense and this is also taken into
consideration.
1 Migration Act 1958 (Cth), s 501(6)
2 Ministerial Direction No. 65

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On the other hand, it is a matter of deliberation as to whether the statement made by Linda
when she was under intoxication is true or false. As a result, this gives the department the
opportunity to ascertain whether her application was made genuinely or not. Above all,
section 501 of the Migration Act 1958, as well as Direction N. 65, gives the Department of
Home Affairs the mandate to cancel or allow one’ s Visa.
Question two: Notice of Intention to Consider Cancellation
Under section 109, the minister has the power to issue the notice of intention to consider
cancellation based on the wrong information provided by the Visa holder. Two main
questions are usually asked here. One, whether one passes the character test. Linda has 14
days to answer this question. From this, she has to check whether the allegations are true or
not. In case the information is wrong or right, she has to write to the Department of Home
affairs detailing the reasons as to why the allegations are true or false.3 The second question
relates to whether her visa should be canceled. She has 28 days to answer the question.
Here, she should give all reasons as to why the Visa should not be canceled. It is essential for
her to tell her own side of the story and the circumstances surrounding the allegations. At
times, an extension is given beyond the 28 days. As a result, it is possible to get an extension
of time so that the response can be sent.
Question Three: Constitution of a Valid Notice of Intention to Consider Cancellation
To start with, a valid notice will have reasons as to why the Notice is being served. The
reasons for considering cancellation should be indicated clearly. The Notice should also
come from a Minister or the department of Home affairs. They have the power to cancel a
visa as stipulated by section 116. In addition, sufficient time should be given for one to
3 Migration Act 1958 (Cth), s 501(6)(a)

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provide a tangible reply. As stated earlier one should be accorded 14 days to make the first
reply then 28 days to have a second reply. It is also essential for the Notice to come
alongside any criminal records that the department may have. This will show how credible
the accusations are. Issues Papers provide essential information which will also guide Linda
in drafting her response to the allegations.4 After consideration of the replies, the
Department of Home Affairs writes back with an informed decision that shows whether the
visa has been canceled or the visa holder has been warned. As such, one can be given a
Notice of Visa Cancellation or a respective warning letter.5 In case Linda is given a warning,
she has to make sure that she does not commit any crime in the future because this will
lead to automatic cancellation of the Visa. On the other hand, one has the right to appeal a
decision that has been made unfairly. This can be made in the Appeals Tribunal6
Bibliography
Migration Act 1958 (Cth), s 501(6)
Migration Act 1958 (Cth), s 501(6) (a)
Migration Act 1958 (Cth), s 501(7)
Ministerial Direction No. 55, note 3, Section 2, para 7
Ministerial Direction No. 65
4 Migration Act 1958 (Cth), s 501(7)
5 Ministerial Direction No. 65, note 3, Annex A, Section 2, para 5(2)
6 Ministerial Direction No. 55, note 3, Section 2, para 7.

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Ministerial Direction No. 65, note, Annex A, Section 2, para 5(2)