Visa Cancellations

Section 116: General Power to cancel

Grounds for exercising s116 power:

A delegate may cancel a visa under s116(1)(a) if satisfied that any circumstances that permitted the grant of a visa no longer exist. This ground requires the delegate to be satisfied that:

• the visa holder at one time met s65 requirements for visa grant and
• the circumstances that enabled the visa holder to meet one or more of the requirements for visa grant no longer exist. Therefore, a visa cannot be cancelled under s116(1)(a) if:
• the circumstances applicable to the grant never existed or
• it is unclear whether circumstances applicable to the grant of the visa ever existed (for example, whether a visitor visa holder found working in Australia ever had a genuine intention to only visit Australia for tourism purposes). In such circumstances, a visa may, however, be liable to cancellation under:
• s116(1)(b), on the basis that the visa holder has not complied with a visa condition

Section 109: False or Misleading Information

Grounds for exercising s109 power:

In broad terms, s109 provides a power to cancel visas where a non-citizen fails to comply with the requirements of s101, 102, 103, 104, 105 or 107(2) by:

• providing incorrect information in a visa application or on a passenger card or
• giving an officer a bogus document or
• failing to notify the department of a change of circumstances or
• failing to correct incorrect answers or
• making any incorrect statement in response to a visa cancellation notice

Section 501: Character

Grounds for exercising s501 power:

Section 501 is the logical starting point for any examination of the character concerned client. The key to an understanding of section 501 is to understand the distinction between sections 501(1) and section 501(2) of the Migration Act. 

• • Section 501(1) deals with the refusal of a visa whereas section 501(2) deals with the cancellation of a visa. 
  • The two powers are discrete and deal with 2 different contingencies. However, both heads of power are discretionary.

Below are some of our recent success stories

Cancellation Under Section 109(1) – Decision made in 2020

The applicant had applied for a Working Holiday (Extension (Subclass 417) visa on 23 May 2020 which was granted. On 15 November 2020, the applicant was sent a Notice of Intention to Consider Cancellation (NOICC). The applicant responded to the notice on 29 & 30 October as well as 2 and 9 November 2020, admitting to providing incorrect information about the work he claimed to have undertaken in regional Australia. The visa was subsequently cancelled.

The Minister holds the power to cancel a visa under Section 109(1) of the Act. The Tribunal was satisfied that the delegate had made the right decision and that the notice complied with the requirements under s 107. The issue before the Tribunal was whether the non-compliance by the applicant fit the description within s 107. The Tribunal decided that there was non-compliance because the applicant provided that he had worked a total of 93 days for the company Peter West when he had actually only worked a total of 4 days. 

The applicant explained the circumstances that led to the non-compliance. He stated that he had intended to complete the three months of work that was required under his visa. The Tribunal accepted this statement pointing to the fact that the applicant had resigned from his previous job as well as purchased a van to be able to complete his duties. The applicant further stated that the reason he was unable to complete the required three months on the farm was because the farmers advised him that due to the bushfires, there wasn’t enough fruit to be picked. The Tribunal accepted the applicant’s statements and had sympathy for his situation. 

The applicant further gave testimony that he had a partner in Australia whom he lived with and planned on applying for a partner visa. The applicant further stated that he provides care for his partner’s dependent mother when his partner is not available. Further, the applicant’s current employer gave testimony in the hearing explaining that the applicant was an honest and hardworking employee. She further stated that her and her husband rely on the applicant for the smooth running of their business and would not hesitate to sponsor the applicant to stay in Australia as her business would suffer should the applicant be deported back to France. 

The Tribunal considered the above circumstances as well as the applicant’s genuine remorse for his actions as reasons to not cancel the visa. The Tribunal further took into consideration the financial and emotional hardship the cancellation would put on the applicant’s mother in France as well as the emotional hardship it would put on the applicant’s partner and the applicant’s partner’s mother. In taking these into consideration, the Tribunal decided not to cancel the visa.

Cancellation Case s 501 (3A)

The applicant had come to Australia from Vietnam on a student visa. The applicant had worked on farms as a fruit and vegetable picker as well as a chicken boner in a factory. The applicant’s Protection Visa application was refused on 22 November 2017 and subsequently applied for a Partner visa after getting married to an Australian citizen. A bridging visa was granted while consideration was being made. 

The applicant was arrested for tending a cannabis crop at a residential property in 2019 and served 260 days in detention before his sentencing hearing. The applicant received bail in May 2020 until December 2020 where he was sentenced to 14 month’s imprisonment. The Minister cancelled the applicant’s visa under s 501 (3A). The applicant was released from prison in 2021 and was taken to an immigration detention. A delegate of the Minister decided on non-revocation of the decision and the applicant applied to the Tribunal to review the decision. The issue that the Tribunal determined was whether there was another reason for revocation. 

The applicant stated that financial struggles as well as emotional distress was contributory to the reasons why he committed the act. The applicant states that he was aware of the illegality of his actions but was tempted with the financial benefits that came with it. The Applicant made statements that his children had developmental issues and his wife struggled immensely throughout her pregnancy. The Tribunal found that the statements made by the applicant were honest and forthright. 

The Tribunal set aside the decision to revoke the mandatory cancellation of the Applicant’s visa keeping in consideration the best interests of the children as well as the strength of his ties in Australia.

Cancellation s 501 (3A)

The Applicant was involved in numerous offences since he had arrived in Australia. He had also committed these offences under various different aliases. His visa was cancelled under s 501 (3A). The Tribunal had to decide whether they are satisfied that there are no other reasons to revoke the decision. 

The Tribunal took into consideration the various offences of the applicant as well as the seriousness of his offences. The Tribunal stated that the seriousness and frequency of the applicant’s offences increased throughout the years. The minister presented various arguments opposing the revocation of the cancellation including the seriousness and frequency of the offences committed by the applicant, the pattern of reoffending and the lack of rehabilitation. 

The Tribunal concluded that they would revoke the cancellation of the visa on the grounds that the applicant had strong ties in Australia, the impact on the children in the applicant’s life, the impact the deportation would have on the applicant and the impact on the victims – which was found to be nil and therefore weighed in the applicant’s favour.