This article will discuss the other visa cancelation procedures under the Migration Act 1958. Do you have a visa? Then you need to know about sections 127A to 133 of the Act. These sections set out the requirements for procedural fairness in relation to visa cancellations. In other words, they ensure you have a fair chance to stay in Australia if you are facing a cancellation of your visa.
Other Visa Cancellation Procedures: Exhaustive Statement of Natural Justice Hearing Rule (Section 127A)
Section 127A is an exhaustive statement of the natural justice hearing rule. This means that the Minister must give the visa holder a fair opportunity to present their case before deciding to cancel their visa.
What is the Natural Justice Hearing Rule?
According to the Australian Law Reform Commission, natural justice, often known as procedural fairness, is fairness in the decision-making of administrative judgments. It has to do with the procedural fairness of a decision-making process, not the substantive fairness of that choice.
A person who believes there is a violation of the procedural fairness rule may ask a judge to review an administrative decision. Moreover, an officer of the Commonwealth who denies procedural fairness will make a decision outside their jurisdiction and raise the question of a constitutional prohibition when the responsibility to respect it has not been legally restricted or eliminated by statute.
The specific requirements of procedural fairness vary depending on the circumstances of the case. However, in general, the Minister must give the visa holder the following:
- Notice of the proposed cancellation.
- An opportunity to make submissions in writing or orally.
- The opportunity for a lawyer or other representative to represent you.
- The opportunity to cross-examine witnesses.
The Minister may also be required to give the visa holder other procedural fairness protections, such as the right to an interpreter or to be given reasons for the decision. Furthermore, if the Minister fails to comply with the requirements of procedural fairness, the visa holder may be able to challenge the decision to cancel their visa in court.
Other Visa Cancellation Procedures: Cancellation of Visas of People Outside Australia (Section 128)
Under this section, the Minister may cancel the visa even without notice to the holder. But does this rule apply at all times? There are conditions that must exist before this rule shall apply. If the Minister is satisfied that:
- There is a section 116 ground for cancelling the visa.
- The non-citizen is outside Australia.
Section 116 sets out several grounds on which a visa can be cancelled, including:
- The non-citizen has made a false or misleading statement in their visa application.
- The non-citizen has engaged in criminal or other prohibited conduct.
- The non-citizen is a risk to the health or safety of the Australian community.
Other Visa Cancellation Procedures: Notice of Cancellation (Section 129)
What must a notice of cancellation contain? Section 129 enumerates the contents of a cancellation notice. The notice must contain the following statements if the Minister decides to cancel the visa under section 128:
- Ground for cancellation. The notice must state the ground for cancellation of the visa. This ground must be one of the grounds listed in section 116 of the Migration Act.
- Particulars of the ground. The notice must also include particulars of the ground for cancellation. This means the notice must provide information about the basis on which the Minister decided to cancel the visa.
- Invitation to show that the ground does not exist. The notice must invite the former holder of the visa to show, within a specified time, that the ground for cancellation does not exist. This means the former holder can challenge the decision to cancel their visa.
- A statement that the cancellation may be revoked. The notice must also state that the cancellation may be revoked if the former holder shows that:
- there is a reason why the visa should not have been cancelled or
- the ground of cancellation does not exist.
However, failure to give notification of a decision does not affect the validity of the decision.
Prescribed Periods (Section 130)
This section states that regulations prescribing a period for section 129 may prescribe different periods and specify when a particular period is to apply, which, without limiting the generality of the power, may be to:
- visas of a specified class; or
- former visa holders in specified circumstances
- former visa holders in a specified class of persons
- former visa holders in a specified class of persons in specified circumstances.
Other Visa Cancellation Procedures: Decision About Revocation of Cancellation and Its Notification (Sections 131 and 132)
What if there is a ground for the revocation of a cancelled visa? Section 131 states that if the Minister is:
- not satisfied that there was a ground for the cancellation
- satisfied that there was another reason why the cancellation should be revoked.
the Minister may revoke the cancellation of the visa. However, this section prohibits such revocation by the Minister if the grounds for visa cancellation exist.
Moreover, section 132 requires that there must be a notification to the visa holder regarding the decision about the revocation of the visa cancellation.
Other Visa Cancellation Procedures: Effect of Revocation of Cancellation (Section 133)
What happens if the Minister revokes the cancellation of the visa? Section 133 enumerates the effect of such revocation. If there is a revocation of the cancelled visa, the following are its effects:
- Without restricting its use before cancellation, a revoked visa cancellation has the same effect as if it had been issued at the time of the revocation.
- If a visa is cancelled or revoked, the Minister may change the time it will be valid, as well as any time frame or deadline before its bearer is allowed to travel to, enter, and remain in Australia.
Are You Facing a Visa Cancellation?
If you are facing a visa cancellation, it is crucial to speak to an immigration lawyer as soon as possible. Our immigration lawyers at JB Solicitors can help you to understand your rights and ensure that you receive fair treatment from the Minister.
Here are some of the services that an immigration lawyer can provide for visa cancellation under the Migration Act 1958:
- Advise you on your rights. An immigration lawyer can advise you on your rights under the Migration Act and the options available if you face visa cancellation.
- Help you to prepare a submission to the Minister. If you decide to challenge the decision to cancel your visa, an immigration lawyer can help you to prepare a submission to the Minister. This submission will state why you believe the decision to cancel your visa was wrong.
- Represent you at a merits review. If your submission to the Minister is unsuccessful, you may be able to have your case reviewed by the Administrative Appeals Tribunal (AAT). An immigration lawyer can represent you at a merits review and help you to present your case to the AAT.
- Advise you on your options if the AAT upholds the decision to cancel your visa. If the AAT upholds the decision to cancel your visa, an immigration lawyer can advise you on your options, such as applying for a new visa or appealing the decision to the Federal Court.
Don’t hesitate to contact us for more information about the other visa cancellation procedures under the Migration Act.