Please note that the information we provide in this article about visa cancellation power of the Minister is current as of the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions, or speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.
Visas cancellation can occur due to various reasons, ranging from minor breaches to serious character concerns. Make sure that you consult with a lawyer on what your next step should be. A lawyer will carefully analyse the specific reasons given for your cancellation and customise a response strategy accordingly based on your circumstances.
This article will discuss sections 133D to 133F of the Migration Act 1958. The rules on visa cancellation power of the Minister under sections 133D and 133E are in relation to sections 133A(1) and 133C(1). By way of review, you may read this article to further understand sections 133A and 133C.
Section 133D: Method of Satisfying Minister of Matters
In relation to the visa cancellation power of the Minister, Section 133D of the Migration Act states that, in determining whether a person or a person included in a specified class of persons satisfies the Minister that a ground for cancelling the person’s visa does not exist:
- RULE: the Minister mustn’t consider any information or material submitted by or on behalf of the person
- EXCEPTION: the information or material is submitted within the period, and in the manner, ascertained in accordance with the regulations.
Section 133E: Notice of Cancellation
Another provision related to the visa cancellation power of the Minister is section 133E. Section 133E establishes the rule that if Minister makes a decision under sections 133A(1) or 133C(1) to cancel a visa, the Minister must give the former holder of the visa a written notice that:
- sets out the decision; and
- specifies the provision under which the decision was made; and
- sets out the reasons (other than non-disclosable information) for the decision.
A failure to comply with this section in relation to a decision does not affect the validity of the decision.
Section 133F: Minister May Revoke Cancellation in Certain Circumstances
The visa cancellation power of the Minister also includes the power to revoke such cancellation. This section applies if the Minister makes a decision (the original decision) under sections 133A(3) or 133C(3) to cancel a visa that has been granted to a person.
Section 133A(3) gives the Minister the power to cancel a visa held by a person who has been immigration cleared (whether or not because of that visa) if the Minister is satisfied that:
- a ground for cancelling the visa under section 109 exists; and
- it would be in the public interest to cancel the visa.
Section 109 of the Act pertains to the cancellation of a visa on the ground of incorrect information.
Moreover, for the purposes of this section, relevant information is information (other than non – disclosable information) that the Minister considers:
- would be the reason, or a part of the reason, for making the original decision; and
- is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
- As soon as practicable after making the original decision, the Minister must:
- give the person, in the prescribed way:
- a written notice that sets out the original decision; and
- particulars of the relevant information; and
- invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
- give the person, in the prescribed way:
Revocation of Cancellation Decision
Also, the Minister may revoke the original decision if the person:
- makes representations in accordance with the invitation; and
- the person satisfies the Minister that the ground for cancelling the visa referred to in sections 133A(3) or 133C(3) (as the case requires) does not exist.
The Minister may only exercise this power to revoke personally. Note that revocation of the original decision means that such decision is considered non-existent.
As to the validity of a person’s detention during this period beginning when the original decision was made and ending at the time of the revocation of the original decision is lawful. Additionally, the person is not entitled to make any claim because of the detention against:
- the Commonwealth,
- an officer or
- any other person.
Additional Resources on Visa Cancellation
If you want to know more about other Migration Act provisions on visa cancellation power of the Minister, you may check out these articles:
- General visa cancellation provisions (Sections 138-140)
- Visa cancellation procedures
- Student visa cancellation (Sections 137J-137P)
- Business visa cancellation (Sections 134-137)
- Emergency cancellation (Sections 134A-134F)
- Regional Sponsored Employment visa cancellation (Sections 137Q-137T)
- Visa cancellation based on incorrect information (Sections 107A-115)
To fully understand the provisions on the visa cancellation power of the Minister, talk to a legal specialist so they can comprehensively explain the law.
Consequences of Visa Cancellation or Refusal
A visa can only be issued, revoked, or refused by the Minister or a delegate of the Minister. This may be required by law, optionally chosen, or both. You may request that they cancel your visa under certain conditions.
Moreover, visa cancellations are subject to Departmental discretion. The Department of Home Affairs (DHA) has the authority to revoke any family members’ visas if they cancel your own. Note that a sponsor, your employer, or a family member cannot revoke your visa. Nonetheless, if a person under 18 has parental responsibility, they can ask the DHA to revoke their visa.
Requesting for a Review
You may be able to request a review of DHA’s decision or the visa cancellation power of the Minister if the they deny your request or cancels your visa. If the Minister personally made the decision, you cannot appeal it.
The autonomous Administrative Appeals Tribunal (AAT) is in charge of conducting a merits review of departmental determinations, including those pertaining to the cancellation of visas. Keep in mind that appeal periods are very stringent. The deadline for submitting a written application is indicated by the Department in the letter notifying you of your decision.
In the event that you feel the decision to refuse or cancel was made unlawfully, you have the option to request judicial review. You should get independent legal counsel or ask a certified migration agent for help with your immigration status.
REQUIRED: Apply for a Review
Note: On 7 December 2023, the Australian Government introduced legislation which will abolish the Administrative Appeals Tribunal (AAT) and replace it with a new body called the Administrative Review Tribunal (ART). Get in touch with lawyers for more information on this.
Got Your Visa Cancelled? Consult JB Solicitors.
Australian immigration regulations and policies are frequently changing. JB Solicitors’ immigration lawyers are knowledgeable in migration laws, procedures, and potential avenues to challenge a cancellation decision.
Depending on the grounds for cancellation, you may have the right to appeal to the Administrative Appeals Tribunal (AAT) or seek Ministerial Intervention. However, the success of these processes heavily relies on the strength of your arguments, which a lawyer can help you structure.
Contact us today for more information about the visa cancellation power of the Minister.
