section 116

The stuff of nightmares: s116(1)(g) of the Migration Act 1958

Know what’s' scary? Section 116(1)(g) of the Migration Act 1958. The Migration Act 1958 is a labyrinth, and this provision has the potential for a nightmare ending.

Section 116(1)(g) of the Migration Act 1958 with reference to Regulation 2.43(1)(oa) allows the Minister to cancel a person’s visa if the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (regardless of the penalty imposed (if any)).

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What this means is that under section 116(1)(g) of the Migration Act 1958 and Regulation 2.43(1)(oa) the Minister can cancel a person’s visa if that person has been convicted of an offence against a law of the Commonwealth, a State or Territory. This is regardless of the penalty imposed, that is a term of imprisonment does not need to be imposed, nor a fine or court order (e.g. community service).

Note: this cancellation provision does not apply to all visas, only temporary visas (with the exception of the following visas: Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)). Although, this does not necessarily keep them safe as those visa holders could alternatively be cancelled under s116(1)(e) of the Migration Act - read more about this here and here.

This is an extremely low threshold and most convictions form sufficient grounds for the Minister to make a decision to cancel a visa. Based on our experience where there are grounds for visa cancellation, the Department will possibly (most probably) cancel that person’s visa. Although, it is possible to avoid visa cancellation provided a strong case is put forward and the decision maker is convinced that there are significant reasons for the visa not to be cancelled. The Department’s position is strict and most types of criminal offending is viewed extremely seriously by the Departmet.

If the Department cancels a visa that person will be deemed to be an “unlawful citizen” and as such be liable for immigration detention under s189 of the Migration Act 1958. There is an appeal avenue to the Administrative Appeals Tribunal (AAT) for review of that decision, but applications must be made within 7 working days and the filing fee of $1787 must be paid within those 7 working days.

Samuta McComber Lawyers is experienced in drafting responses to section 116 cancellation notices. We have had successes at both the initial response stage and appeals to the AAT. We would recommend engaging a lawyer for the initial response so that your response puts you in the best legal position to avoid visa cancellation and immigration detention.

Disclaimer: This does not constitute Immigration advice. Always seek advice legal advice from a registered migration agent and lawyer. Migration Law is constantly changing. This information is accurate only at the time of publication.

The verdict is in: soft (skills) is best!

Visa cancellations and visa refusals under the Migration Act 1958 are no soft topic.

Visa cancellations and visa refusals under the Migration Act 1958 are no soft topic.

soft skills

noun

  1. personal attributes that enable someone to interact effectively and harmoniously with other people.

If there’s a set of skills most lawyers lack, it’s soft skills.

That is why, soft skills are what distinguish Samuta McComber Lawyers from the rest. Our lawyers’ soft skills complement their hard-earned legal expertise and analytical intelligence, so that the truth of our clients stories can be better told to the decision makers who ultimately hold our clients’ lives in their hands.

Needless to say, when you are facing a possible visa cancellation under s501 of the Migration Act 1958 or have received a non-revocation outcome by a delegate of the Minister of Home Affairs (and you intend on appealing that decision to the Administrative Appeals Tribunal ( AAT ) ), it is in your best interests to engage lawyers whose expertise is complemented by excellent soft skills. The following are the top 3 reasons why:

  1. the character-related provisions (s116 and s501) of the Migration Act 1958 is a complex area of law - not all lawyers have sound knowledge or experience in this niche area of immigration law;

  2. the ramifications for a visa refusal or visa cancellation under s501 is permanent exclusion from returning to Australia - literally, a life long ban, with no exceptions whatsoever; and

  3. when appearing at the AAT in relation to a s501 visa cancellation, the lawyers for the Minister of Home Affairs will play an active role in the proceedings (they will be at the final hearing to make submissions, examine and cross-examine the Applicant and the evidence relied on). The Minister for Home Affairs is of course represented by the Australian Government Solicitor or a top-tier law firm (currently Sparke Helmore Lawyers or Clayton Utz Lawyers).

Soft skills are our point of difference.

The following list are our top 7 sought after soft skills for our legal team:

#1: A genuine desire to help other people

#2: High personal integrity

#3: Humility and sensitivity

#4: Simplicity

#5: Empathetic listeners

#6: Confidence and persistence

#7: Discipline, dependability, and loyalty

Lets be real, representing clients whose visas have been refused or cancelled under s116 and s501 of the Migration Act 1958 is a tough gig! Professionally, the legislation is complex, yet specific, with strict deadlines and specific considerations. Personally, the nature of the work is highly emotive and demanding, with daily exposure to clients’ family units being torn apart by the threat of (or actual) deportation and individuals being removed from the only home (country) they’ve ever known.

The reality of the legal consequences for our clients and their loved ones drive our personal commitment to provide a level of representation:

  • that is driven by a passion to selflessly assist others, instead of being focussed on the money;

  • that demonstrates a deep commitment to honesty, loyalty, candor, transparency, and respect for others;

  • where we put ourselves in others’ shoes, seeing our clients’ situations, attitudes, and needs through their eyes;

  • that strives to be down-to-earth, communicating in simple language and avoid using “legalese”, recognising that our clients have unique styles, interests, and needs, having come from different walks of life;

  • that is confident and unshakable, refined only by respect and efficiency.

In our view, soft skills allows us to make better submissions on behalf of our clients, and we understand the knowledge gained through our deeper relationship with our client adds to our responsibility as their advocate as we observe and interpret our client’s story to the decision maker, whether it be the delegate of the Minister for Home Affairs or Member of the AAT .

After all, every one has a story to tell: their lives being more than the sum of their offences (character).

Three steps to visa cancellation under s116 of the Migration Act

Have you received notice of a visa cancellation under s116 of the Migration Act? If you have, you must act fast to ensure you do not miss any deadlines (which are typically very short and strict). We have created this flow chart to clarify the general requirements. 

Further details on the topic of visa cancellations under section 116 can be found here and here

Visa cancellation under s116

EDIT - Please note that from 1 July 2018 the AAT’s Migration and Refugee Division filing fee has increased to $1,764.00. This means that the reduced filing fee is currently $882.00.

Also, please note that the AAT’s General Division, which hears reviews of decisions made under s 501 of the Migration Act, has a different filing fee. The General Division filing fee is $920.00. A reduced filing fee of $100.00 is payable in certain circumstances, including if you are currently detained in correctional or immigration detention.