Posted 12/01/2022 by Leah Ferris
Recent events surrounding the cancellation of tennis player Novak Djokovic’s Temporary Activity (subclass 408) visa have highlighted the broad powers provided to the Minister (currently the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs) to cancel a person’s visa under the Migration Act 1958 (the Act). While a previous Flagpost discussed the power of the Minister to cancel a person’s visa on character grounds, this post will focus on the general power of the Minister to cancel a visa under section 116 of the Act, including the Minister’s personal power to cancel visas.
What is a visa?
In order to travel to and enter Australia, a person who is not an Australian citizen is required to seek permission from the Minister (section 29). This is known as a visa. The Migration Regulations 1994 prescribe the various circumstances in which a person will qualify for a specific visa (section 40) and the conditions they must meet in order to continue to hold the visa (section 41). Some requirements, such as the health requirement, apply to most visa holders and require visa applicants to state that they are free from a disease or condition that would result in a threat to public health or danger to the Australian community (see Schedule 4 of the Migration Regulations). There is no specific reference to COVID-19 in the health requirement.
In addition, from 7 December 2021, the Biosecurity (Entry Requirements—Human Coronavirus with Pandemic Potential) Determination 2021 made under subsection 44(2) of the Biosecurity Act 2015 requires a person over the age of 12 years and 3 months travelling to Australia to provide evidence that prior to boarding they made a written statement declaring:
- they have received a course of vaccinations with one or more accepted COVID‑19 vaccines at least 7 days prior to boarding and can produce evidence of this or
- they have a medical contraindication to the COVID‑19 vaccine and can produce evidence of this provided by a medical practitioner or
- neither of the above applies to the person.
These requirements are separate to the conditions imposed on a person’s visa.
General power to cancel a person’s visa under the Act
Following the decision by the Minister or their delegate to grant or refuse a visa (section 65), a visa may be cancelled. This may be on the grounds that the visa was based on incorrect information (Subdivision C of Division 3 of Part 2 of the Act) or on other grounds (Subdivision D of Division 3 of Part 2). Note that the Minister or their delegate also has the power to cancel a visa on security grounds (Subdivision FB of Division 3 of Part 2) and other grounds with respect to specific visas (business visas, students visas and regional sponsored employment visas).
Section 116 of the Act provides for a number of grounds in which a person’s visa can be cancelled, including:
- the decision to grant the visa was based, wholly or partly, on a particular fact or circumstance that either did not exist or is no longer the case or that no longer exists (paragraphs 116(1)(a) and (b))
- the visa holder has not complied with the conditions of the visa (paragraph 116(1)(c))
- the visa holder’s presence in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals (paragraph 116(1)(e))
- the visa should not have been granted because the application for it or its grant was in contravention of the Act or of another law of the Commonwealth (paragraph 116(1)(f)).
In deciding whether to cancel a person’s visa, the Department of Home Affairs has drafted internal guidelines (Procedures Advice Manual 3) which provide advice to decision makers on when a person’s visa should be cancelled. For example, with regards to paragraph 116(1)(e), the Procedures Advice Manual 3 lists examples of when it may be enlivened, including on the basis that a person is a risk to the health of the Australian community as a whole if a person has been assessed by a Medical Officer of the Commonwealth as having active and untreated tuberculosis.
Generally, a non-citizen whose visa cancellation decision was made by a delegate of the Minister has the right to appeal to the Administrative Appeals Tribunal (AAT) (Part 5 and Part 7 of the Act) for merits-based review of the decision. In some circumstances, a visa cancellation decision can be reviewed in the Federal Circuit and Family Court of Australia (section 476), and in such cases, the court cannot decide if a visa should be granted or cancelled but rather whether the decision-maker made an error of law in cancelling the visa.
The personal power of the Minister to cancel a visa
Section 133C of the Act provides the Minister with a broad personal power to cancel a person’s visa even where a delegate has either made a decision not to cancel a visa or the AAT has set aside a delegate’s decision to cancel a visa. The power can only be exercised by the Minister personally.
In cancelling a visa under subsection 133C(1), the Minister must be satisfied that one of the grounds for cancellation set out in section 116 exists; that the visa holder has not satisfied the Minister that the ground does not exist; and it is in the public interest to cancel the person’s visa. The procedures set out in Subdivisions E and F of the Act (which set out the process for cancelling a person’s visa, including what information must be given to the person and their right to respond) do not apply to a decision under subsection 133C(1) (subsection 133C(2)). However, the rules of common law natural justice, which provide significant procedural rights in administrative decision-making, apply to such decisions.
Subsection 133C(3) allows the Minister to cancel a visa if satisfied that it would be in the public interest to do so, without giving the visa holder the opportunity to establish that the ground for cancellation does not exist (though the Minister is still required to invite the visa holder to make representations in accordance with subsection 133F(3)). The Explanatory Memorandum (page 30) to the Bill which became the Migration Amendment (Character and General Visa Cancellation) Act 2014 which introduced subsection 133C(3) notes that this provision was introduced to allow the Minister in certain circumstances to cancel a visa quickly without notice (though is silent to what circumstances were envisaged). Where the Minister has chosen to proceed down this pathway, the procedures set out in Subdivisions E and F of the Act (subsection 133C(4)) and the rules of natural justice do not apply. As noted by academic Mary Crock ‘the Act gives the minister “god-like powers” to cancel visas and if “they really decide to … the power is there”’.
A person who has their visa cancelled under section 133C may appeal to the Federal Circuit and Family Court of Australia for judicial review of the Minister’s decision (section 476), including consideration of whether the cancellation of the person’s visa was in the public interest.