The almost assured visa cancellation of an Iraqi protection visa holder featured prominently in the Australian media last week. Even the Prime Minister weighed in with transcripts of his TV interviews available on his official media release page.
The PM used the opportunity to confirm that when he was the minister for immigration he brought in new laws that saw mandatory visa cancellations for those sentenced to a term of imprisonment of 12 months or more or convicted of a sexually based offences involving a child, and who is serving a sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. He also used his media interviews to snipe the opposition, as the current Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs as recently as last month is applying political pressure to pass a bill to strengthen the character test further.
This news is a timely reminder that a permanent visa is not immune from cancellation. Aside from character cancellations that take up most of the media’s attention, this is not the only way a visa, permanent or otherwise, can be cancelled. There are several different powers in the Migration Act 1958 (Cth) that empowers visa cancellation.
The cancellation powers, the situations that will enable their use, and whether they can be appealed to the Administrative Appeals Tribunal is complex. Very broadly, the sections of the Act where these powers lie are:
Section 109 – for providing incorrect information, bogus document, or not notifying a change in circumstance or of an incorrect information;
Section 116 – wide ranging general cancellation powers of which the most common of all type of visa cancellation is for not complying with a visa condition;
Section 128 – the ability to cancel a visa under 116 without giving notice to the visa holder if they are outside Australia;
Section 134B – emergency powers to cancel a visa on national security grounds and when ASIO has given a recommendation to do so;
Section 134 – specific powers to cancel permanent business visas for not undertaking business activities;
Section 137Q – specific powers to cancel permanent regional employment visas if the primary visa holder does not give genuine effort to start or complete the required two-year employment period they were nominated for;
Section 140 – when a person’s visa has been cancelled, this power provides for the consequent cancellation of the family member's visas who were part of this person’s visa application;
Section 501 – cancellation on character grounds.
Most of the above powers are discretionary and very few prevent a permanent visa holder from having their visa cancelled because they are in Australia. The effect of a visa cancellation if the person is in Australia is that they will hold no visa at all and will be subject to detention and removal.
For those thinking that Australian citizenship will provide a haven, especially for migration-related fraud, may want to think again. This is because the Minister can revoke Australian citizenship by conferral should that person be convicted of certain Commonwealth offences and that offence was connected to that person being granted a visa. This migration-related fraud power to revoke citizenship can be used as long as the offence was committed at any time prior to being approved Australian citizenship and will not apply only if the offence was not in any way, directly or indirectly, material to the person becoming an Australian permanent resident.