How does a cancellation of visa based on incorrect information occur? What are the consequences of cancellation based on incorrect information?
Part 2, Division 3, Subdivision C, Section 107A to Section 115 of the Migration Act 1975 discusses cancellation based on incorrect information. This article discusses cancellation of visa based on incorrect information.
Section 107A: Possible Non-compliances in Connection With a Previous Visa May Be Grounds for Cancellation of Current Visa
Under Section 107A, the possible non-compliances that:
- may be specified in a notice by the Minister under Section 107 to a person who is the holder of a visa, and
- if so specified, can constitute a ground for the cancellation of that visa under Section 109
include non-compliances that occurred at any time, including non-compliances in respect of any previous visa held by the person.
Section 107 provides the rules on notice of incorrect applications, while Section 109 (as discussed below) provides for the cancellation of visas if applicants provide incorrect information.
Section 108: Decision About Non-compliance
Under Section 108, the Minister is to:
- consider any response given by a visa holder in the way required by paragraph (1)(b) of Section 107, and
- decide whether there was non-compliance by the visa holder in the way described in the notice.
Section 107 (1)(b) provides that the holder may give the Minister a written response to the notice that:
- if the holder disputes that there was non-compliance:
- shows that there was compliance; and
- in case the Minister decides under Section 108 that, in spite of the statement under sub-subparagraph (A), there was non-compliance–shows cause why the visa should not be cancelled.
- if the holder accepts that there was non-compliance:
- give reasons for the non-compliance, and
- shows cause why the department should not cancel the visa.
Section 109: Visa Cancellation Based on Incorrect Information
Under Section 109, the Minister may cancel the visa after:
- deciding under Section 108 that there was non-compliance by the holder of a visa,
- considering any response to the notice about the non-compliance given in a way required by Section 107(1)(b), and
- having regard to any prescribed circumstances.
If the Minister decides to cancel a visa, the Minister must do so if there exist circumstances declared by the regulations to be circumstances in which a visa must be cancelled.
Section 110: Cancellation Provisions Apply Whatever Source of Knowledge of Non-compliance
Under Section 110, to avoid doubt, Section 107, Section 108, and Section 109 apply whether or not the Minister became aware of the non-compliance because of information given by the holder.
Section 111: Cancellation Provisions Apply Whether or Not Non-compliance Is Deliberate
Under Section 111, to avoid doubt, Section 107, Section 108, and Section 109 apply whether the non-compliance was deliberate or inadvertent.
Section 112: Action Because of One Non-compliance Does Not Prevent Action Because of Other Non-compliance
Under Section 112, a notice under Section 107 to a person because of an instance of possible non-compliance does not prevent another notice under that section to that person because of another instance of possible non-compliance.
In addition, the non-cancellation of a visa under Section 109 despite an instance of non-compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non-compliance.
Section 113: No Cancellation if Full Disclosure
Under Section 113, if the holder of a visa who has immigration clearance complied with Section 101, Section 102, Section 103, Section 104, and Section 105 in relation to the visa, the Minister cannot cancel visa because of any matter that the applicant fully disclosed in so complying.
Section 114: Effect of Setting Aside Decision To Cancel Visa
Under Section 114, if the Federal Court, the Federal Circuit and Family Court of Australia (FCFCOA), or the Administrative Appeals Tribunal sets aside a decision under Section 109 to cancel a person’s visa, the department considers the visa to have never been cancelled.
In addition, any detention of the non-citizen between the purported cancellation of the visa and the decision to set aside the decision to cancel is lawful and the non-citizen is not entitled to make any claim against the Commonwealth or an officer because of the detention.
Section 115: Application of Subdivision
Under Section 115, Subdivision C applies to:
- applications for visas made, and
- passenger cards filled in
on or after 1 September 1994.
In addition, Subdivision C, other than Section 101 and Section 102, applies to:
- applications for visas, or entry permits, within the meaning of the Migration Act 1958 as in force before 1 September 1994, that under the regulations are taken to be applications for visas and that have not been finally determined before that date, and
- passenger cards filled in before 1 September 1994.
Subdivision C also applies to a visa granted otherwise than because of an application on or after 1 September 1994 and does so as if:
- Subdivision C had applied to:
- the application for the visa, and
- passenger cards filled in before that date
- the application for any other visa, or entry permit, (within the meaning of the Migration Act 1958 as in force immediately before that date) because of which the party held the visa had been the application for the visa, and
- for the purposes of Section 107 to Section 114, non-compliance by the holder of the visa with the sections referred to in Section 107 included any action or condition of the holder because of which Section 20 of that Act as so in force applied to the holder.
Seeking Legal Advice from Immigration Lawyers
You may face cancellation of visas if you provided incorrect answers in your past visa application or incoming passenger card. As a visa holder, you have a duty not provide an incorrect answer when completing a visa application or incoming passenger card. To do so can cause a visa cancellation based on incorrect information.
Furthermore the department considers any information that you give, whether you provided it, or someone else provided it on your behalf, to be an answer to a question in a visa application form or passenger card. Thus, you must always make sure that when completing a visa application, you provide correct information to avoid a visa cancellation based on incorrect information.
JB Solicitors has a leading team of expert immigration lawyers that can help with your situation. We can offer you legal advice on completing a visa application to avoid cancellation based on incorrect information. Do you have any more questions regarding cancellation based on incorrect information?
Contact us today.
