An approved visa can be subject to a visa cancellation. Section 116 of the Migration Act 1958 (the Act) grants the Minister and his delegates broad visa cancellation powers. Cancellation includes providing incorrect information, a change in circumstances, or posing a risk to the health, safety, or good order to the Australian community.
Part 2, Division 3, Subdivision D of the Migration Act 1958 provides the grounds and rules for visa cancellation. This article discusses matters pertaining to visa cancellation.
Section 116: Visa Cancellation Powers
Under Section 116 of the Act, the Minister may cancel a visa on the following grounds:
A Change in Circumstances Which Was Relied Upon When Granting the Visa
Under Section 116 (1)(a) and (aa), a minister may cancel a visa if the decision to grant the visa was wholly or partly based on a particular fact or circumstance that no longer exists or did not exist. An example of change of circumstances includes a relationship break-up or death of a partner in a partner visa.
Non-compliance With Visa Conditions
Under Section 116 (1)(b) and (c), a visa may be cancelled if the holder has not complied with a condition of the visa, or another person who should have complied with a condition of a visa did not do so.
For example, the work restriction or work limits on student visas. Presently, the Student Visa (500) allows you to work up to 20 hours per week or 40 hours fortnightly. A student must not work for more than 20 hours a week during any week when their course is in session.
If an international student works for more hours in a week than the Australian government allows, they may cancel their visa.
Health, Safety, or Good Order Risks
Under Section 116 (1)(e), the DHA can cancel a visa if the presence of its holder in Australia is or may be a risk to the health, safety or good order of the Australian community or to an individual or individuals.
The recent case of Novak Djokovic v Minister for Immigration, Citizenship, Migrant Services and
Multicultural Affairs [2022] FCAFC 3 demonstrates visa cancellation on this ground. The Minister cancelled Tennis Star Novak Djokovic’s visa on the ground that he did not get vaccination for COVID-19, therefore posing a health risk.
As to good order grounds, the Court accepted that his presence in Australia may “excite” some groups who were against vaccination. Those groups were keen to support Mr Djokovic’s presence in Australia as an unvaccinated athlete legitimising their opposition to vaccination.
The Minister added that Mr Djokovic was a high-profile person and a role model in the sporting community. The fact that he was not vaccinated, and the public knew that he was against vaccination was a risk because this may promote anti-vaccination within Australia.
Non-satisfaction of Visa Holder’s Identity
Under Section 116 (1AA), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity. The verification of identity is one of the most important elements in a visa application.
The analysers evaluate the entirety of documents required; including the photograph, address details, spelling of names, and all other important information. Identity issues arise when a person previously provided fake documents or was involved in fraud.
Providing Incorrect Information
Under Section 116 (1AB), the Minister may cancel a visa if he or she finds that the visa holder (or someone on their behalf) gave incorrect information to:
- an officer,
- an authorised system,
- the Minister,
- any other person, or a tribunal, performing a function or purpose under the Act, or
- any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to the Act.
It is crucial to note that the incorrect information must have been taken into account with making a:
- a decision that enabled the person to make a valid application for a visa, or
- a decision to grant a visa to the person.
This Section deals with the giving of the incorrect information that Subdivision C does not cover.
Student Visa Violations
Under Section 116 (1)(fa), DHA may cancel a student visa if:
- its holder is not, or is likely not to be, a genuine student, or
- its holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct (including omissions) not contemplated by the visa.
Hence, they can cancel your student visa if it is proved that you stopped attending classes or your Confirmation of Enrolment (CoE) got cancelled.
Other Grounds:
- If the holder has not entered Australia or has so entered but has not been immigration cleared (Section 116 (1)(d)),
- The DHA should not have granted the visa because the application for it or its grant was in contravention of this Act or of another law of the Commonwealth (Section 116 (1)(f)),
- A prescribed ground by regulations for cancelling a visa applies to the holder (Section 116 (1)(g)), and
- A benefit was asked for or received by, or on behalf of, the person (the visa holder) who holds the current visa from another person in return for the occurrence of a sponsorship-related event.
Section 117: When Can They Cancel Visa
Section 117 of the Act provides that visas may be cancelled under Section 116 (1), (1AA), or (1AB):
- Before you enter Australia,
- When you leave Australia, or
- While you are in the migration zone, including in immigration clearance.
For instance, you hold a student visa but stopped attending classes, and you leave Australia temporarily. When you return to Australia, the Australian Border Force at the airport may cancel your student visa if they find that you have stopped attending classes or your CoE is not valid. They may detain you in an immigration detention centre pending your removal or deportation.
The only exception to Section 117 is that a permanent visa cannot be cancelled under Section 116(1) if the visa holder is in the migration zone and has immigration cleared on last entering Australia.
Section 118: Visa Cancellation Powers Do Not Limit or Affect Each Other
Section 118 provides that the powers to cancel a visa under the following do not limit or affect each other:
- Section 109 (incorrect information),
- Section 116 (general power to cancel),
- Section 128 (when holder outside Australia),
- Section 133A (Minister’s personal powers to cancel visas on Section 109 grounds),
- Section 133C (Minister’s personal powers to cancel visas on Section 116 grounds),
- Section 134B (emergency cancellation on security grounds),
- Section 134 (cancellation of business visas),
- Section 137Q (cancellation of regional sponsored employment visas),
- Section 140 (consequential cancellation of other visas),
- Section 500A (refusal or cancellation of temporary safe haven visas), or
- Section 501, 501A, 501B or 501BA (special power to refuse or cancel on character grounds)
Hence, visa cancellation powers in one Section stated above will not affect or limit visa cancellation powers in another Section listed above.
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