Migration Law: Analysis of Visa Cancellation and Related Legal Issues

This assignment delves into Australian migration law, specifically focusing on visa cancellation. The document presents three scenarios involving visa holders and the potential for visa cancellation under various sections of the Migration Act 1958. The analysis includes the identification of legal issues, relevant legislation (including sections 109, 116 of the Act, and Regulation 2.41 of the Migration Regulations 1994), and the application of these laws to the given facts. The assignment explores the Notice of Intention to Cancel Visa (NOICC) process, the time limits for responses, and the factors the Minister considers when deciding whether to cancel a visa. Furthermore, the assignment includes detailed memos outlining the legal arguments and potential outcomes for the visa holders, including the option to appeal to the Tribunal and subsequently to the Federal Circuit Court or Federal Court. The document offers insights into the complexities of migration law and the rights of visa holders in Australia.

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

1MIGRATION LAW
1. Internal Memorandum
To: The supervisor
From: Student
Re: Paige Bahati.
Date: 6th August 2019.
Question Presented:
The present memo focusses on the most common cancelation power enumerated in the
Migration Act which will be considered by the Department for cancelling visa of Paige. It also
provides a checklist considering all the key matters that can be considered in the Notice of
intention to cancel visa. Further it also provides the time limit Paige had for responding to the
Notice of Intention to Cancel visa and from when it will begin and whether any extension of
such time limit available.
Short Answer:
Under section 1161 of the Migration Act, the Minister has the power to cancel Paige’s
visa as she has given incorrect information about her marriage status due to which section 108 is
to be considered. This memo considers the case of Paige regarding the situation if she receives
Notice of intention to cancel visa letter from the Immigration department. The present memo
focusses on the visa options that are available to the client when if her present visa gets
cancelled.
Facts:
1Migration Act 1958(Cth) s116.

2MIGRATION LAW
 Paige Bahati
o Permanent resident of Australia
o Originally Congolese living in Burundi
o Had no male family for protecting her
o Arrived on subclass 204 visa2
o Date of arrival in Australia is August 2015
o Represented herself as unmarried and not being in relation with anybody
o In reality, she is married but did not disclose it while making visa application
o Received a letter from Department of Home Affairs which states that they were
aware that she was married when was granted visa.
Discussion/Analysis
Paige arrived in Australia on a sub class 2043 visa on August 2015. This subclass 204
visa is given to women who are living out of their origin country and not have any protection
from a make relative and is subjected to the danger of harassment, victimization or abuse. She
received the visa as during her visa application she informed that she was unmarried and also not
in relation with anyone. But in reality she was married at the time when she got her visa. This
showed that she has given incorrect information and thus breached section 1014 of the said Act.
It states that during visa application no incorrect answer is to be given. This can lead to
cancellation of visa by the Minster as per section 1095.
2 "Check Visa Details And Conditions", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/visas/already-have-a-visa/check-visa-details-and-conditions/see-your-visa-
conditions?product=204>.
3 Ibid.
4 The Migration Act 1958 (Cth) s101.
5 Ibd,s109.

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The Notice of Intention to Consider Cancellation can be sent to her as she has failed to
comply with section 1016. In response to this, Paige can admit about non-compliance and put
forward the reasons for not cancelling the visa as per sections 1077 and 1088. Under Regulation
2.41(d) of the Migration Regulations 19949, the Minister then considers the situations in which
the non-compliance occurred. Further, the immigration history as well as the general character of
the visa holder must be considered by Minister as per Regulation 2.41(f)- (g)10.
The time limit to respond to NOICC is 28 days unless an extension is given. It starts from
the day the notice is received.
Conclusion
Thus it is seen that as per section 10911, her visa can be cancelled. But prior to that a letter
of NOICC will be sent to her and to respond to it 28 days will be allowed to her.
Answer 2:
To: supervisor
From: student
Re: Reply to NOICC on behalf of Paige Bahati.
Date: 16.08.2019
Question Presented:
This memo considers whether the visa cancellation is mandatory if the Minister is convinced that
there lies enough reason for cancellation. In addition to this, it will also focus on the facts as well
6 Migration Act 1958(Cth) s101.
7 Ibid, s107.
8 Ibid, s108.
9 The Migration Regulations 1994, Regulation 2.41(d).
10 Ibid, Regulation 2.41(f)- (g).
11 Migration Act 1958 (Cth) s 109.

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arguments that can be put forwarded as response to the letter of NOICC of the Department for
considering cancellation.
Short Answer:
The cancellation is upon the discretion of the Minister of the Immigration department under
section 10912 as the Department will consider the facts and arguments to be put forwarded in
response made by Paige to the NOICC.
Facts:
 Paige Bahati
o Permanent resident of Australia, lives in 121 Redfield Rd, Brisbane, Qld 4170
o Originally Congolese, born in July 4, 1983, in Kinshasa, Democratic Republic of
Congo
o Arrived on subclass 20413 visa on August 2015 from Burundi
o Married to Robert previously.
o When applied for visa, she was staying alone but supported financially by Robert
but she did not disclose it.
o Represented herself as unmarried and not being in relation with anybody
o Looks after father of James who is 83 years old and suffering from various
diseases like high blood pressure and diabetes.
o Volunteers at the McIntyre Centre which is a centre for children with special
needs
12 Migration Act 1958 (Cth) s109.
13 "Check Visa Details And Conditions", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/visas/already-have-a-visa/check-visa-details-and-conditions/see-your-visa-
conditions?product=204>.

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 Robert Honore
o husband of Paige
o 30 years older to her
o Had other relations and used to live independently without her
o Financially supported her
o Died recently naturally
 James Masthead
o In relationship with Paige
o Journalist for National newspaper
o Stays away from very often
Discussion/Analysis
Due to incorrect information of marriage, she was sent letter of NOICC to her. The
Minister has the power to cancel her visa under section 11614 of the said Act. However, under
Regulation 2.41(d) of the Migration Regulations 199415, the Minister then considers the
situations in which the non-compliance occurred. Further, the immigration history as well as the
general character of the visa holder must be considered by Minister as per Regulation 2.41(f)-
(g)16.
In this regard, DHA may consider her family ties to Australia that she looked after James’
ill and aged father. She further volunteers at a centre for special children. Further, she is a very
diligent resident in Australia, had never broken law of the country. She also never got a ticket for
14 Migration Act 1958 (Cth) s116.
15 Migration Regulations 1994 Regulation 2.41(d).
16 Migration Regulations 1994 Regulation 2.41(f)-(g).

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breaching traffic rules. She also admits that whatever she did is wrong but she was compelled to
do so due to her difficult situations.
Conclusion
It can be concluded that she can be given an option to live in Australia by not cancelling
her visa.
Part 3:
18.08.2019
Ms. Paige Bahati
121 Redfield Rd
Brisbane,
Qld 4170
RE: 204 REFUGEE VISA
Dear Ms Bahati,
Thank you for paying a visit to our office and giving us an opportunity to advice you on
your visa queries. We understand that you came in Australia by the 204 visa as you are in
difficult situations in your life. As you have given incorrect information, your visa can be
cancelled on the basis of it under section 11617 of the Act.
17 Migration Act 1958(Cth) s116.

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Due to incorrect information of marriage, you are given letter of NOICC as you failed to
comply with section 101. In response to this, you can admit about non-compliance and put
forward the reasons for not cancelling the visa as per sections 10718 and 10819. Though the
Minister has the power to cancel her visa under section 116 of the said Act, however, under
Regulation 2.41(d) of the Migration Regulations 199420, the Minister then considers the
situations in which the non-compliance occurred. Further, the immigration history as well as the
general character of the visa holder must be considered by Minister as per Regulation 2.41(f)-
(g)21.The Department will look into the responses made by you. The facts that you have been a
good citizen will be considered by it. Further, that you have never breached any law will be
taken into consideration too. In this regard, DHA may consider her family ties to Australia that
she looked after James’ ill and aged father. She further volunteers at a centre for special children.
Further, she is a very diligent resident in Australia, had never broken law of the country. She also
never got a ticket for breaching traffic rules. She also admits that whatever she did is wrong but
she was compelled to do so due to her difficult situations. Further they will also consider the
situation that compelled you to give incorrect information such that her husband of Paige was 30
years older to her. He also had relations with other and used to live independently without her.
However, till if they cancelled your visa, you have an option to appeal that decision to the
Tribunal which will be the final resort available to you.
But for this, you have to make the appeal to the Tribunal within time limit prescribed as
the Tribunal has no authority to extend the time limit. Hence it is very important to lodge the
appeal within time limit.
18 Ibid, s107.
19 Ibid, s108.
20 Migration Regulations 1994 Regulation 2.41(d).
21 Ibid, Regulation 2.41(f)-(g).

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Further, if you are not satisfied with the decision of the Tribunal, you can make
application to review the decision given by the Tribunal, then you further have an option to
appeal against the decision of the Tribunal to the Federal Circuit court or the Federal Court.
However, the decision of the Federal Circuit court or the Federal Court will be final and binding
on you and you cannot go against it.
In such situation, you will either have to leave Australia or apply for another visa if you
are permitted for it.
Regards.

9MIGRATION LAW
References:
"Check Visa Details And Conditions", Immi.Homeaffairs.Gov.Au (Webpage, 2019)
<https://immi.homeaffairs.gov.au/visas/already-have-a-visa/check-visa-details-and-conditions/
see-your-visa-conditions?product=204>.
The Migration Act 1958 (Cth) s116.
The Migration Regulations 1994.