Minister’s Personal Power to Cancel a Visa

The Migration Act 1958 bestows the Minister of Home Affairs with the power to cancel a visa granted to a non-citizen in certain circumstances. This article will discuss the Minister’s power to cancel a visa under Sections 133A to 133C of the Migration Act 1958 and its implications.

Section 133A: Minister’s Personal Powers to Cancel Visas on Section 109 Grounds

Section 133A of the Act provides instances of the Minister’s power to cancel a visa based on section 109 grounds. This Section lays out the following rules:

Rule #1: If a notice of incorrect application was given to the holder of a visa in relation to a ground for cancelling a visa based on section 109 and the Administrative Appeals Tribunal (AAT), the former Migration Review Tribunal, former Refugee Review Tribunal, or a delegate of the Minister decides: 

• That the ground did not exist or
• Not to cancel the visa despite the existence of the ground.

The Minister may set aside that decision and cancel the visa if:

1. The Minister considers that the ground exists;
2. The visa holder does not satisfy the Minister that the ground does not exist; and
3. The Minister is satisfied that cancelling the visa would be in the public interest.

What Are the Grounds for Cancellation Under Section 109?

If a visa application does not comply with the following provisions, it can result to its cancellation:

• Section 101, wherein all questions in the application must have correct answers;
• Section 102, wherein all questions in the passenger card must have correct answers;
• Section 103, wherein there is a prohibition in the submission of bogus documents;
• Section 104, which requires the visa applicant to inform a migration officer in writing of the new circumstances in relation to their application; or
• Section 105, which requires the visa applicant to inform a migration officer in writing of any incorrectness of the information provided in the application and of the correct answer.

Rule #2: The Minister has the power to cancel a visa held by a person who has been immigration cleared (whether or not because of that visa) if:

1. The Minister is satisfied that a ground for cancelling the visa under section 109 exists; and
2. The Minister is satisfied that cancelling the visa would be in the public interest.

The Minister may cancel a visa under this circumstance whether or not:

1. The visa holder was given a notice under section 107 in relation to the ground for cancelling the visa; or
2. The visa holder responded to any such notice; or
3. The AAT or the former Migration Review Tribunal or former Refugee Review Tribunal, or a delegate of the Minister:
   • decided that the ground did not exist; or
   • decided not to exercise the power to cancel a visa despite the existence of the ground.

Section 133A of the Act gives the Minister the power to cancel a visa if the visa holder has not complied with a condition of their visa. Moreover, the Minister may only exercise this power to cancel a visa personally.

Section 133B: Other Provisions Relating to the Exercise of Power to Cancel a Visa in Section 133A

Section 133B of the Act explains other circumstances relating to the Minister’s power to cancel a visa.

1. Non-compliances that happened at any time (before or after the beginning of this section), including non-compliances in relation to any prior visa held by the person, are among the potential non-compliances that could constitute a ground for the cancellation of a visa under subsection 133A.
2. To avoid doubt, rules #1 and #2 of section 133A apply:
   • whether or not the Minister became aware of the ground for cancelling the visa because of information given by the visa holder; and
   • whether the non-compliance because of which the ground is considered to exist was deliberate or inadvertent.

Another vital thing to note under this provision is that the non-cancellation of a visa under section 133A, 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 133C: Minister’s Personal Powers to Cancel a Visa on Section 116 Grounds

Section 133C of the Act provides for the instances when the Minister can cancel a visa based on section 116 grounds. This Section lays out the following rules:

Rule #1: If a notice of proposed cancellation was given to the holder of a visa in relation to a ground for cancelling a visa based on section 116 and the Administrative Appeals Tribunal (AAT), the former Migration Review Tribunal, former Refugee Review Tribunal, or a delegate of the Minister decides: 

• That the ground did not exist or
• Not to cancel the visa despite the existence of the ground.

The Minister may set aside that decision and cancel the visa if:

1. The Minister considers that the ground exists;
2. The visa holder does not satisfy the Minister that the ground does not exist; and
3. The Minister believes that cancelling the visa would be in the public interest.

Moreover, the Minister’s power to cancel a visa under this subsection is subject to section 117.

Rule #2: The Minister may cancel a visa held by a person if:

1. The Minister believes that a ground for cancelling the visa under section 116 exists; and
2. The Minister believes that cancelling the visa would be in the public interest.

Additionally, the Minister may cancel a visa whether or not:

• The visa holder gets a notification under section 119 in relation to the ground for cancelling the visa; or
• The visa holder responded to any such notification; or
• The Administrative Appeals Tribunal or the former Migration Review Tribunal, or former Refugee Review Tribunal, or a delegate of the Minister:
  • decided that the ground did not exist; or
  • decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground); or
• A delegate of the Minister decided to revoke a cancellation of the visa under section 128 in relation to the ground.

What Can You do if You Are Affected by Section 133A, 133B, and 133C?

If any of these provisions affect you, there are several options. These options include:

• Contacting a lawyer to discuss your visa status
• Applying for a review of the Minister’s decision
• Making a complaint to the AAT

Contact a Migration Lawyer to Facilitate Your Appeal

If a visa gets cancelled by the Minister based on Sections 133A to 133C of the Migration Act 1958, it can significantly impact the individual’s rights to work, study, or reside in the country. In such a situation, seeking the assistance of an experienced lawyer can be beneficial. 

A migration lawyer can help assess your case, appeal the decision of visa cancellation, and provide legal advice and guidance to the applicant. Our migration lawyers at JB Solicitors can help you understand your rights and the legal process of appealing a cancelled visa. We can also advise you on the best course of action.

Contact us now.