In this blog, we will discuss the general provisions on visa cancellations as the Migration Act 1958 outlines. The Migration Act covers the general provisions on visa cancellation under Subdivision H of Part 2, Division 3.
Section 138: Cancellation and Revocation of Cancellation of Visas – How and When?
Subsection (1) of this Section states that the the Minister is responsible for making the following decisions, which they can document for record-keeping purposes.
- a decision to cancel a visa, or not to cancel a visa;
- a decision to revoke the cancellation of a visa, or not to revoke the cancellation of a visa.
Subsection (2) states that the record must state the day and time of its making. Moreover, Subsection (3) states that the decision is taken to have been made on the day and at the time the record is made.
According to point (4) of Section 138, the Minister has no power to vary or revoke the decision after the day and time of the record. Lastly, it states that the failure to comply with subsection (2) does not affect the validity of the decision or the operation of point (4).
Section 139: Visas Held by 2 or More
This Section under general provisions on visa cancellation states that if 2 or more non-citizens hold a visa then:
- Subdivisions C, D, E, F and FA and this Subdivision apply as if each of them were the holder of the visa; and
- to avoid doubt, if the visa is cancelled because of one non-citizen being its holder, it is cancelled so that all those non-citizens cease to hold the visa.
Section 140: Cancellations of Visa Results in Other Cancellation
Section 140 of general provisions on visa cancellation states the following points. According to Subsection (1) if a person’s visa is cancelled under:
- section 109 (incorrect information),
- 116 (general power to cancel),
- 128 (when holder outside Australia),
- 133A (Minister’s personal powers to cancel visas on section 109 grounds),
- 133C (Minister’s personal powers to cancel visas on section 116 grounds); or
- 137J (student visas),
a visa held by another person because of being a member of the family unit of the person is also cancelled.
According to Subsection (2) if a person’s visa is cancelled based on the provisions of
- sections 109 (incorrect information),
- 116 (general power to cancel),
- 128 (when holder outside Australia),
- 133A (Minister’s personal powers to cancel visas on section 109 grounds),
- 133C (Minister’s personal powers to cancel visas on section 116 grounds), or
- 137J (student visas),
and another person holds a visa solely because of their relationship to the person whose visa was cancelled but is not subject to subsection (1), the Minister has the authority to cancel the other person’s visa without providing prior notice.
Subsection 140: Subsection (3) and Subsection (4)
Subsection (3) of Section 140 under general provisions on visa cancellation states that in the event that:
- a person’s visa (referred to as the cancelled visa) is cancelled under any provision of this Act, and
- the person happens to be a parent of another individual who holds a specific visa (referred to as the other visa) granted under section 78 (child born in Australia) due to the parent holding the cancelled visa
the other visa will also face cancellation.
Subsection (4) of Section 140 under general provisions on visa cancellation states that if:
- authorities cancel a visa under subsection (1), (2), or (3) as a result of another visa cancellation, and
- authorities revoke the cancellation of the other visa under section 131, 133F, 137L or 137N,
- then the cancellation under subsection (1), (2), or (3) is also revoked.
Seeking Advice from Immigration Lawyers
Our lawyers at JB Solicitors can help you out if you are dealing with any immigration law matter. If you are looking to make an application for a visa, or appeal the decisions for visa applications reach out to our lawyers.
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