LML6005 - Migration Law: Visa Compliance and Cancellation

This report provides a detailed analysis of visa cancellation powers under the Migration Act 1958, focusing on a hypothetical case involving Linda, a subclass 186 visa holder. It identifies Section 109 of the Migration Act as the relevant provision for considering visa cancellation due to potentially fraudulent information provided in her initial application regarding an IELTS test. The report outlines the procedural requirements for the Department of Home Affairs, including serving a Notice of Intention to Consider Cancellation, the time limits for responding to such notice, and the possibility of requesting an extension. It further details the necessary contents of the notice, ensuring it includes the reasons for the proposed cancellation and the visa holder's particulars. The analysis emphasizes the importance of adhering to the legal provisions and ensuring procedural fairness in the visa cancellation process. Desklib offers similar solved assignments and past papers for students.

Running head: MIGRATION LAW
Migration Law
Name of the Student
Name of the University
Author Note

1MIGRATION LAW
1. The first issue in this situation is which cancellation power(s) of the Migration Act
1958 the Department of Home Affairs would rely on to consider the cancellation of
Linda’s visa and the reasons of relying on that power. Section 118 of the Migration
Act, 19581 lists the powers of the Department of Home Affairs in relation to the
cancellation of visa. Under section 109 of the Migration Act, 19582 the Minister has
been conferred with the power to cancel a visa in case he has enough evidence to
believe that the application relating to the visa in question contained incorrect
information. In this situation, Linda has informed the migration agent that she is a
holder of the sub class 186 Employer Nomination visa and has been working with the
employer since the grant of the visa. She has also informed the agent that she has
confessed to her friend that her visa application has contained an IELTS test, which
was forged and her friend has informed the Department of Home Affairs about the
same. In this situation, the Department of Home Affairs may rely upon the powers to
cancel the visa that has been conferred upon him through section 109 of the Migration
Act as the application based upon which the visa has been granted to Linda has
contained a fake information about the IELTS test. This comes under the purview of
section 109 of the Act so the department would upon this section in cancelling the
visa.
2. The second issue in this question is the time limit within which Linda is supposed to
respond in case she receives the Notice of Intention to Consider Cancellation that has
been served upon her by the Department of Home Affairs and whether she can avail
an extension of the time to respond to such Notice of Intention to Consider
Cancellation3. In case the Department of Home Affairs is satisfied that there is enough
reason to consider the cancellation of the visa held by Linda, they may serve upon her
1 The Migration Act, 1958, ss. 118
2 The Migration Act, 1958, ss. 109
3 Freckelton, Alan. Administrative Decision-Making in Australian Migration Law. ANU Press, 2015.

2MIGRATION LAW
a Notice of Intention to Consider Cancellation. This notice will provide Linda with a
chance of presenting her explanation regarding the situation and any grounds that she
has to prevent such cancellation. However, there is a certain time limit within, which
Linda is supposed to respond to such a notice. In case the notice has been sent through
the postal services, the response needs to be provided within seven working days from
the day on which the notice has been sent. In case the notice has been sent to you
through fax or email, the same needs to be responded to within 28 days from
receiving the notice. Being served upon with the Notice of Intention to Consider
Cancellation, Linda will be have twenty-eight days to respond to the notice, stating
for what reasons her visa should not be cancelled. In case Linda is not able to respond
to the notice within the time limit provided, he may apply for an extension to prepare
and submit the response to such a notice. For that purpose, Linda will be required to
contact the National Character Consideration Centre (NCCC) to avail an extension.
3. The Department of Home Affairs may serve upon the person whose visa is in question
with a Notice of Intention to Consider Cancellation. However, to serve with the same,
the department needs to ensure the presence of valid grounds that has influenced their
decision to pursue such cancellation. The Department needs to satisfy the fact that
they have enough grounds to issue such a notice and consider cancellation of the visa.
With that notice the holder of the visa needs to be given a chance to explain her side
of the situation and furnish a response to that notice. The notice needs to be served in
a written form. The notice furnished needs to in English. The notice, which has been
served upon the holder of the visa needs contain the reason for which the cancellation
has been proposed. It needs to contain the name and particulars of the person whose
visa has been subjected to be cancelled. It may contain other details as the department
might prescribe to contain. In the present case, the department needs to provide Linda

3MIGRATION LAW
with a Notice of Intention to Consider Cancellation. In that notice, the particulars of
the Linda and her visa needs to be contained. The notice must also contain the reason
for which such a cancellation has been considered.

4MIGRATION LAW
Reference
Freckelton, Alan. Administrative Decision-Making in Australian Migration Law. ANU Press,
2015.
The Migration Act, 1958