Section 116 cancellations follow-up: some clarifications and thoughts

We have previously written about our observations about the increased rate of visa cancellations under s 116(1)(e) of the Migration Act 1958. In a somewhat unexpected turn for our young firm, Jennifer Samuta was invited to speak with Radio New Zealand about s 116 cancellations last week and, today, Joel McComber was invited to appear on Maori TV in New Zealand

Given the interest the topic has attracted, we thought it would be worthwhile to clarify a few things about our experiences with cancellations under s 116(1)(e) and share our thoughts about what it means for the Pasifika, Maori and New Zealand communities in Australia. 

"If you don't want to be deported, don't break the law"

When we talk about visa cancellations in the community, there are always at least a few people that express the view that if you don't want to have your visa cancelled, don't break the law. 

We agree that not breaking the law is a logical and commendable way of attempting to avoid the prospect of visa cancellation, but under s 116(1)(e) you do not need to have broken a law in order to have your visa cancelled.

The Minister for Immigration and Border Protection (the Minister) only needs to be satisfied that the visa holder is or may be a threat to the health, safety and good order of the community. The Minister and the Department of Immigration and Border Protection (DIBP) do not require evidence of a criminal conviction in order to be satisfied that a risk exists.

In fact, the Minister and the DIBP have taken the approach that the mere fact that a person been charged with, but not yet convicted of, an offence is sufficient to found a satisfaction that they pose a risk. This makes it entirely conceivable that a non-citizen charged with an offence could have their visa cancelled under s 116(1)(e) and later be found not guilty of the offence (or even have the charges withdrawn prior to trial). 

Notwithstanding that the charge did not result in a finding of guilt, the cancellation would stand (subject to any appeal or review rights that remain to be exercised) and the former visa-holder would be excluded from Australia for a period of three years. 

The DIBP's policy is open to abuse by law enforcement, at least theoretically

As mentioned above, the Minister and the DIBP have been known to take the view that the mere fact the police have seen fit to charge a person is sufficient grounds to found a satisfaction that the person poses a risk to the Australian community. 

It is no secret that Australia's police forces share information with the DIBP in relation to the alleged or proven conduct of non-citizens. Further, local police forces are distinctly aware of the prospect of visa cancellation for non-citizens and make these consequences known to non-citizens in the community. It is entirely likely that police forces across the country are aware that the Minister and the DIBP take the bringing of charges as sufficient to found a satisfaction that a risk may exist. 

That being the case, there is at least a theoretical possibility that, in some circumstances, police will take the possible visa cancellation consequences into account in determining whether to bring charges against a person. While this could cut both ways (make officers more or less likely to bring charges in a given situation), it would be preferable, at least for the administration of criminal justice, that the possibility of visa cancellation not colour a decision to bring (or not to bring) charges in a particular situation, even if that influence is only theoretical. 

It Is not just non-citizens being caught up in this process

There are are, in broad terms, two ways of acquiring Australian citizenship by birth:

  1. any child born in Australia to a parent who is an Australian citizen or permanent resident acquires citizenship at the time of birth; and
  2. if neither parent of a child born in Australia is a citizen or permanent resident (including if both parents are New Zealand citizens holding Special Category (subclass 444) Visas), then the child will automatically acquire Australian citizenship on their tenth birthday if they have been ordinarily resident in Australia for the first ten years of their life. 

However, the DIBP does not seem to have a mechanism to track this automatic acquisition of citizenship at age ten, so that if a dual New Zealand/Australian Citizen (who acquired Australian citizenship at age ten) travels back into Australia on a New Zealand passport, then the DIBP will record the dual-citizen as being a Special Category (subclass 444) Visa holder and will attract the attention of the DIBP if they are charged with, or convicted of, an offence. 

We stress that this possibility is not merely theoretical. We have seen the DIBP issue an Australian citizen with a Notice of Intention to Consider Cancellation (NOICC) under s 116, and it is entirely likely that Australian citizens who have not responded to an NOICC have been placed in immigration detention, despite holding Australian citizenship. 

IF you're an SCV holder with children born in australia, obtain confirmation of their citizenship on their 10th birthday

If you have a child who, by the operation of law, acquired citizenship on their tenth birthday, we strongly encourage you to apply to the DIBP for confirmation of that citizenship as soon as possible. Obtaining confirmation of citizenship usually requires providing a birth certificate and evidence of residence in Australia for the first ten years following birth (school photos and report cards are useful evidence). 

Obtaining confirmation of citizenship will not just (hopefully) head off any errant visa cancellation processes initiated by the DIBP, but will also make it easier for your child to prove their entitlement to other benefits, including social security payments, HECS-HELP and FEE-HELP loans and, pending passage of legislation currently in the Senate, subsidised university fees. 

If you've got family or friends in remand, plan in advance

The time frames for responding to a NOICC are limited. Most people who are notified of an intention to cancel while held in remand are advised by way of letter and are usually given five working days to respond. 

Five working days is not a long time when you're being held in remand with limited access to information, communication and immigration law advice, so it important that visa holders and their families be as prepared as possible to respond to a NOICC with evidence of their ties to Australia (length of stay, minor children in Australia, employment). 

If the Minister or their Delegate decides to cancel a visa, the visa holder has seven working days to apply for review in the Administrative Appeals Tribunal. This is a 'hard' limitation period and cannot be extended. The seven working day time-frame alone can be difficult to meet while in remand (especially when it takes us about ten days to get a legal phone call into some remand centres), but additionally the applicant must also pay a filing fee of at least $865.50 when lodging the application. 

If the Applicant, or their family or friends, cannot pay the filing fee, the application will be invalid and the Tribunal will not review the cancellation decision. 

It is therefore important for those facing potential visa cancellations, and their families on the outside, to be prepared for an adverse decision and be ready to file an application and pay the application fee within the seven working day limitation period.

Unfortunately, If you're in remand and you have no money, family or friends to help you, you're in trouble

Sadly, we have been contacted by some New Zealand citizens in remand pending resolution of criminal charges who have had their visas cancelled under s 116 but have been unable to pay the AAT's filing fee (simply because they have no money and no family or friends on the outside who can assist them).  Though these non-citizens have lived in Australia for decades, they will be unable to seek review of the decision to cancel their visas on the merits. 

Below is an excerpt from a letter we recently sent to the AAT seeking an extension of time to enable a former visa-holder  further time to try and work out a way of coming up with the filing fee. 


While we as a firm appreciate that there may be circumstances in which a visa should be cancelled, and the Australian government should have some power to cancel visas in some circumstances, we question the fairness and equity of a scheme of visa cancellations that effectively excludes long-term residents (many who arrived in Australia as infants) from having access to a review of the merits of the cancellation decision. 

Further, as lawyers, we expect that this practical exclusion from merits review in the AAT will only cause more applications for judicial review to be filed in the Federal Circuit Court of Australia (FCCA), notwithstanding their prospects of success, simply because there is no filing fee for such applications in the FCCA (at least where the applicant is in prison or immigration detention). 

Obtain legal advice

If you or your family member are facing visa cancellation under s 116 or any other section of the Migration Act, or are worried about that your visa may be cancelled, it is important that you obtain expert immigration legal advice as quickly as possible. 

If you or someone you know is in prison or immigration detention, your first conversation with one of our solicitors, even if it is just to point you in the right direction, will always be free of charge. Feel free to contact us now.