Case Study: Visa Cancellation Grounds in Australian Migration Law

This case study delves into the complexities of visa cancellation under the Migration Act 1958, focusing on a scenario involving Linda, who holds a class 186 Employer Nomination visa. The central issue revolves around the Department of Home Affairs' power to cancel a visa based on false information provided during the application process, specifically a forged IELTS test. The analysis covers Section 109 of the Act, which grants the Department this authority, and examines the timeframe for responding to a Notice of Intention to Consider Cancellation, including potential extensions. Furthermore, the case study outlines the required contents of such a notice, emphasizing the need for clear communication of the reasons for potential cancellation and the visa particulars. The study references relevant legislation and scholarly works to provide a comprehensive understanding of the legal framework governing visa cancellations in Australia.

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

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File Note
1. The issue in this instant situation is the power of cancellation that the Migration Act
1958 provides to the Department of Home Affairs, which they needs to rely upon in
considering the cancellation relating to the visa of Linda and the reasons behind
relying upon that power. The powers relating to the cancellation of visa has been
vested upon the Department of Home Affairs by virtue of the section 109 of the Act1,
if the Department is satisfied that the application which resulted in the grant of the
visa in question contained false information based on the evidence that has been made
available to them. In the instant situation, it has been informed to the migration agent
that Linda holds a class 186 Employer Nomination visa and since the grant of the
same she has been working with the same employer. In addition, she informed the
agent regarding the confession that she has made to her friend in relation to the forged
IELTS test she has submitted with her visa application and which her friend has
communicated to the Department of Home Affairs. This confers the Department of
Home affairs to rely on the powers that has been assigned to them by virtue of section
109 of the Act that enables them to cancel Linda’s visa that has been granted to her
based upon incorrect information regarding the false IELTS test. The Department
would rely upon section 109 of the Migration Act, 1958 while considering the
cancellation of Linda’s visa as the situation comes under the purview of this section.
2. The subsequent issue that has cropped up in this situation is the time period within
which the response to the Notice of Intention to Consider Cancellation that Linda has
received in relation to the cancellation of her visa needs to be filed with the
Department of Home Affairs, and any extension of such time period that is available
to Linda in filing the response. The Department may serve a Notice of Intention to
1 Migration Act 1958 ss. 109

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Consider Cancellation upon Linda in case they are satisfied about the presence of
adequate reason for considering the cancellation of the visa. Such a notice would
extend a chance to Linda in availing a chance to present her side of the situation and
any explanation that she might have that may prevent such a cancellation of her visa.
Again, the response that Linda needs to file in order to present an explanation to
request a prevention of the cancellation is to be filed within a specified time limit. In
case the notice was sent to Linda using the post, the response needs to be filed within
seven working days. However, in case of the notice sent via email or fax, the same
needs to be responded to within twenty-eight form the date of receiving the notice2.
This would provide Linda with chance to file a response within twenty-eight days
form the date of receiving the notice, in which she needs to furnish reasons to prevent
the cancellation of her visa. However, in case Linda does not have the scope to file the
response within that specified time, she has the option of availing an extension of the
time for filing the response. In that case, Linda needs to request an extension from the
National Character Consideration Centre (NCCC).
3. A Notice of Intention to Consider Cancellation may be served upon the person having
his visa under question by the Department of Home Affairs. Again, the notice needs
to be served upon the person in case the Department has a valid ground and adequate
evidence that justifies their disputing validity of the person’s visa. The Department
needs to base their decision in this regard upon genuine evidence and valid grounds.
That notice needs to be served upon the person whose validity of visa has been
disputed with a view to present her with a chance of being heard by way of a
response. The notice that has been served upon the person whose visa is in question
needs to be provided in a written form. The notice must be written in plain English.
2 Jacobs, Keith. Experience and representation: contemporary perspectives on migration in Australia. Routledge,
2016.

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The notice, thus served is required to contain the reason for which the cancellation of
the visa has been considered. The notice must also contain the basic particulars
regarding the visa in question and any other detailed that needs to be included. In the
instant situation, Linda needs to be provided with a notice by the department and the
notice needs to contain all the particulars that has been prescribed by the migration
law. the notice must contain the reason for such a cancellation.

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Reference
Jacobs, Keith. Experience and representation: contemporary perspectives on migration in
Australia. Routledge, 2016.
The Migration Act, 1958