Visa Cancellations in Australia

Australian Visa Cancellations: Understanding Sections 116 and 501 of the Migration Act Visa cancellations are among the most serious actions the Department of Home Affairs can take against non-citizens in Australia. Whether a person is visiting, studying, working, or has lived in Australia for decades, a visa cancellation can have immediate and severe consequences, including detention and removal from Australia. Under the Migration Act 1958 (Cth), the Minister for Home Affairs (or a delegate) is granted broad powers to cancel a visa at any stage. Visa cancellations usually occur by the exercise of a power under either section 116 or section 501 of the Migration Act 1958. These powers are frequently used in the interests of public safety, character concerns, and compliance with visa conditions. This article provides an overview of the grounds, procedures, and legal consequences of visa cancellations under these sections, as well as options available for appeal or review. The legal framework for visa cancellations The Migration Act 1958 provides various grounds on which a visa may be cancelled. The relevant cancellation power will depend on the circumstances of the visa holder, their location at the time (onshore or offshore), and the nature of the alleged conduct or non-compliance enlivening the power to cancel the visa in question. Some visa cancellations are discretionary, while others are automatic or mandatory, depending upon the circumstances. The legal complexity increases further when character assessments or criminal histories are involved. While there are several provisions for cancellation, section 116 and section 501 are the most frequently applied and subject to review in the Administrative Review Tribunal (formerly, the Administrative Appeals Tribunal). Section 116 of the Migration Act – discretionary visa cancellations Section 116 allows the Minister or their delegate to cancel a visa if certain conditions or risk factors are met. This power is broad and applies to almost all types of visas, including student, visitor, skilled, and permanent resident visas. Grounds for Cancellation under Section 116 A visa may be cancelled under section 116 if: The visa holder has not complied with a visa condition; The visa was granted based on false or misleading information; In the case of a student visa, the visa holder is not, or is likely not, a genuine student; or the visa holder has engaged, is engaging, or is likely to engage in conduct which is not contemplated by the grant of the student visa; The presence of the person in Australia is, or may be, a risk to: The health, safety, or good order of the Australian community; or The health or safety of an individual. There has been a change in circumstances such that the visa would not have been granted if those circumstances had existed at the time of the application; or A prescribed ground for the cancellation of a visa applies to the visa holder. Importantly, cancellation under section 116 is discretionary. The only exception to this is subsection 116(3), which provides that if the Minister (or their delegate) may cancel a visa under section 116, the Minister must cancel the visa if there exists prescribed circumstances in which a visa must be cancelled. Notification of cancellation under section 116 If the Minister or their delegate decides to cancel a visa under a power contained in section 116, notice must be given to the visa holder of the proposed cancellation in the prescribed method, stating the basis on which the Minister proposes to cancel the visa. The notice must also invite the visa holder, within a specified time, to substantiate that the grounds for cancellation do not exist, or that there is some other reason why their visa should not be cancelled. Legal assistance during this stage is critical. An experienced immigration lawyer can prepare comprehensive submissions addressing the legal criteria, factual background, and mitigating circumstances. This is of paramount importance, as satisfying the Minister or their delegate that the grounds upon which they propose to cancel the visa is erroneous, or that there are other grounds on which the visa ought not to be cancelled. Some of the grounds which can be relied upon include, but are not limited to, family ties, community support, and international obligations owed to the visa holder. Section 501 of the Migration Act – refusal or cancellation of visa on character grounds Section 501 provides the Minister with the power to refuse to grant, or to cancel, a visa on character grounds. This provision applies to both temporary and permanent visa holders and has been used increasingly in recent years in the context of criminal conduct or criminal association. The Character Test Under subsection 501(6), a person does not pass the character test if, among other reasons: They have a substantial criminal record; They have been convicted of sexually based offences involving a child; They are reasonably suspected of being a member of, or having an association with, a criminal organisation; There is a significant risk that the person would engage in criminal conduct, harass or vilify a segment of the community, or pose a danger to the community; or They have been convicted of an offence: that was committed whilst in immigration detention; or during an escape by the person from immigration detention; or after they escaped from immigration detention, but before the person was taken into immigration detention. A substantial criminal record generally means the person has been sentenced to a term of imprisonment of 12 months or more, either as a single sentence or cumulative total. Naturally, this would include a sentence of death, or imprisonment for life. Mandatory visa cancellations under section 501(3A) In certain circumstances, cancellation under section 501 is mandatory. This usually applies when a non-citizen: has a substantial criminal record; or is serving a term of imprisonment for life for an offence against the law of the Commonwealth, or a State or Territory; or has been convicted of a sexually based offence involving a child. In such cases, the Minister must cancel the visa without notice. The

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