Over the last few months we've been working hard with our partner organisations to inform affected communities of the operation affect of section 501 of the Migration Act 1958. However, over recent weeks we have seen an increase in the number of clients (particularly New Zealand citizens) who have had their visas cancelled under a different section - section 116(1)(e).

WHAT YOU NEED TO KNOW - the process is fast & furious!

Section 116 of the Migration Act is not a new section. In fact, it predates the December 2014 changes to the Act that introduced the section 501(3A) mandatory visa cancellation powers where:

a visa holder fails the character test because of having a 'substantial criminal record' (as defined by the Act); and
the visa holder is currently serving a term of full time imprisonment.

Section 116(1) gives the Minister for Immigration and Border Protection (the Minister) the power to cancel a visa in a number of circumstances, including where a visa holder has breached a visa condition (subsection (b)) or where it comes to light that the visa was fraudulently obtained or granted (subsection (g)).

The increased visa cancellations we are seeing are specifically under section 116(1)(e)(i), which provides that that the Minister may cancel a visa if they are:

satisfied that the presence of the visa holder 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.

However, just because the Minister is satisfied that a visa holder is or might be a risk to the health, safety or good order of the Australian community does not mean that the visa will (or must) be cancelled. Once the Minister (or their delegate) is satisfied that the visa holder does pose a risk, they must decide whether, in all the circumstances, it is preferable that the visa be cancelled. Unlike decisions under s 501C of the Act, there are no prescribed issues or matters that must be taken into account by the Minister's delegate when deciding whether to cancel a visa under s 116. However, the delegate must consider any representations or evidence provided by the visa holder.

Our concern is that the s 116 cancellation powers are so wide and discretionary, that it has the potential to cast a wide net of visa cancellations, both high in number and high in velocity! We have already noticed an increase of enquiries to our office in this regard from detention centres, remand centres and prisons. The following are significant points to note about this particular visa cancellation power:

A visa holder does not have to have a substantial criminal record (i.e. 12 months imprisonment) in order to be cancelled under s116;
A visa holder does not necessarily have to be found guilty of any criminal offence in order for the Minister to be satisfied that they post a threat to the good order of the community.
A visa holder held in remand or on bail can have their visas cancelled under s 116 - this is prior to determination of criminal charges currently before a court;
A visa holder who is of interest may be taken into detention prior to their visa being cancelled, interviewed by the Minister and a visa cancellation decision handed down within 4 hours;
Once the visa is cancelled under s 116 the affected person has 7 business days to appeal to the Tribunal; and
Once a visa is cancelled under s 116 the affected person will be kept in immigration detention until a decision is made by the Tribunal - a process which has no certain processing time, and may take as long as 12 months.

HOW IT WORKS - time is of the essence!

When a visa holder becomes a person of interest for a visa cancellation under s 116, they are firstly issued with what is called a Notice of Intention to Cancel (NOIC) letter by the Minister. If that person is in the community they have 5 working days to respond with the reasons why their visa should not be cancelled. Or, if that person is taken into immigration detention for questioning, the process is much quicker (we have had a client who was only given 20 minutes to provide reasons) as the decision must be made within 4 hours of the interview commencing.

If a decision is made to cancel a visa under s 116, the former visa holder will become an unlawful non-citizen and be taken into immigration detention (if not already detained in correctional or immigration detention). Former visa holders can lodge an application for review of the cancellation decision in the Migration and Refugee Division of the Administrative Appeals Tribunal (AAT). That application may need to be lodged as soon as seven (7) working days after the visa cancellation decision is made and there is a $1,731 application fee payable to the AAT (which may be reduced by 50% if a fee reduction request is lodged).

In order to successfully apply for review of a cancellation decision under s 116(1)(e)(i) by the AAT, the former visa holder would need to satisfy the Tribunal that either:

they do not pose a threat to the health, safety or good order of the Australian community; or
that the reasons for not cancelling their visa outweigh the reasons for cancelling the visa.

WHY IS THIS HAPPENING - the inevitable question!

We have been asked why there seems to be a sudden increase in cancellations under s 116 over recent times (particularly for New Zealand citizens) and why, given the broad scope of s 116(1)(e), there was a need to make amendments to the Migration Act to expand the powers under s 501.

The honest is answer is that we don't know.

What we do know is that the Government currently has a strict policy that is cracking down on criminal activity, particularly violent offenders. We also note the operation of s 117(2) of the Act prevents a permanent visa from being cancelled under s 116 if the visa holder is in Australia. It is possible that it wasn't until recently that it occurred to anyone in the Minister's office that as Special Category (subclass 444) Visas granted to New Zealand citizens on their arrival to Australia are technically temporary visas (although of indefinite duration), they could and be cancelled under s 116 even where the visa holder was in Australia. The only issue now is that the threshold for visa cancellations in this regard is now much lower and the immediate consequences much more severe!

SEEK LEGAL ADVICE

As with any visa cancellation matter, it is important that you obtain sound legal advice about your options and your individual circumstances as quickly as possible. Strict time limits apply for both responding to notices of intention to consider cancellation under s 116 and applying for review of any cancellation decision to the AAT or the Courts.

Our firm's primary focus is on complex migration matters and particularly visa cancellations. Contact us now to arrange an initial consultation with one of our solicitors.

See our follow-up blog with further information here.