Migration Law: Letter of Advice on Visa Cancellation and Appeal Rights

This assignment provides a letter of advice concerning the potential cancellation of a visa under the Migration Act 1958. It addresses the consequences of visa cancellation, including the individual's migration status, potential immigration detention, and the right to appeal to the Administrative Appeals Tribunal (AAT). The advice outlines the relevant sections of the Migration Act, specifically focusing on the Minister's power to cancel a visa, the conditions under which a visa can be cancelled, and the process for appealing such a decision. It also details the time limits for filing an appeal (7 days) and the factors the AAT considers when reviewing a cancellation, such as the threat to the community and compelling reasons against cancellation. The document concludes by summarizing the potential outcomes and the individual's rights following a visa cancellation decision. Desklib offers a wealth of study resources, including past papers and solved assignments, to support students in their academic endeavors.

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

1MIGRATION LAW
Letter of Advice
To
Linda,
The issue in the present case are the consequences that might follow if the Minister
proceed to cancel her visa. Her migration status in case her visa has been cancelled. Whether
for the same and how the appeal should be instituted. The time limits for such review.
Section 109 of the Migration Act 19581 contains provisions relating to the cancellation of
a visa in case the information is incorrect. Under this section, the minister has the power to
cancel a visa if he is satisfied that the holder was in non-compliance or the response to the
notice is also not in compliance. A minister has the power to cancel the visa in case the
circumstances are such that it demands a cancellation of the visa.
Under section 108 of the Act2 the minister has the discretion to decide whether there is a
non-compliance or the response is compliant with section 107 of the Act3. Under section 107
of the Act, the minister may issue a notice to the visa holder if he is of the opinion or has
reason to have that opinion, he may issue a notice to the visa holder regarding the same.
Section 116 of the Act4 empowers the minister to cancel the visa where he is convinced
about the facts mentioned in the section. In case the fact upon which the visa has been
decided to be granted to the holder ceases to exist or it has never existed, the minister has the
power to cancel the visa. The visa of an individual can also be cancelled in case the holder or
another person has failed to comply with the conditions of that visa. In case the holder of the
visa failed to enter Australia or has failed to clear the immigration, the minister may cancel
1 The Migration Act 1958 s. 109
2 The Migration Act 1958 s. 108
3 The Migration Act 1958 s. 107
4 The Migration Act 1958 s. 116

2MIGRATION LAW
his visa on that ground. If the presence of the holder of the visa presents a threat to the safety
and health of the any individual or community in Australia, the minister may cancel his visa.
Under section 48 of the Act5, a holder of the visa, which has been cancelled under the
section 116 of the Act will not be eligible to apply for a visa. In case a visa has been
cancelled under section 116, the stay of the holder will be unlawful in Australia and he will
be non-citizen in Australia. The holder of such a cancelled visa will be subjected to
immigration detention.
The holder of the visa, which has been cancelled under section 116 of the Act may prefer
an appeal to the Administrative Appeals Tribunal. This appeal needs to be brought within 7
days of such cancellation. The holder of such a cancellation will be held in detention for the
period till, which the appeal will process. In processing the appeal, the Administrative
Appeals Tribunal will make sure that whether the holder poses any threat to the community
and whether the reasons for not cancelling are more compelling than the cancellation of the
same.
In the present situation, in case the Minister proceeds to cancel her visa under section 116,
Linda will not be not be eligible to apply for a visa. Her stay will be unlawful in Australia and
she will be non-citizen in Australia. She will be will be subjected to immigration detention.
However, she may prefer an appeal to the Administrative Appeals Tribunal challenging such
a cancellation. This appeal needs to be brought within 7 days of such cancellation. The appeal
needs to be instituted with an application fee of $1,731. She will be held in detention for the
period till, which the appeal will process. In reviewing such a cancellation, the tribunal will
take two merits in consideration. Firstly, whether the presence of Linda will pose any threat
to the community in Australia. Secondly, whether the reason for not cancelling the visa will
be more compelling than cancelling the visa.
5 The Migration Act 1958 s. 48

3MIGRATION LAW
Under the light of the above discussion, it can be concluded that, the consequences that
might follow if the Minister proceed to cancel her visa will make her a non-citizen and her
stay in Australia will be unlawful.

4MIGRATION LAW
References
The Migration Act 1958