visa cancellation

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).

Visa cancellations under s 116(1)(e); or, when your visa is cancelled even though you've done nothing wrong

We recently began acting for a student visa holder whose visa was cancelled under s 116(1)(e) of the Migration Act 1958 on the basis that he had been charged with a single offence involving non-domestic personal violence.

A delegate of the Minister considered that their power to cancel our client’s visa had been enlivened as they were satisfied that our client’s ongoing presence in Australia was, or might have been, a risk to the health and safety of the alleged victim the alleged offence. Further, the delegate considered that the power to cancel our client’s visa should be exercised on the basis that the possible risk posed to the alleged victim outweighed the reasons why our client’s visa should not be cancelled.

This was despite the following:

1.       our client had not been found guilty of the alleged offence, he had only been charged by the police and indicated that he intended to contest the charge (i.e. plead not guilty);

2.       our client had not previously been convicted of, or charged with, any criminal offence in Australia or any other country;

3.       our client had been released on bail by the police on his own undertaking (that is, the police did not consider our client such a risk that they required our client to apply to a Court for bail);

4.       our client had complied with the condition of his bail not to have any contact with the alleged victim from the time of the offence through to the time of his cancellation;

5.       the Department had no evidence of any probative value that the alleged offence had in fact been committed (only the mere fact that our client had been charged with the offence by police);

6.       the cancellation of our client’s visa would mean that he would be unable to complete the degree and lose the benefit of more than $60,000.00 in course fees paid by his family;

7.       the cancellation would also render our client ineligible to be granted any temporary visa for 3 years after the date of cancellation.

After receiving the cancellation decision our client applied to the Administrative Appeals Tribunal for review of the decision and applied to the Department for a bridging visa so that he could attempt to regularise his immigration status. Thankfully he was able to find the money pay the Tribunal’s $882.00 reduced filing fee within the seven working day period for applying for review.

Barely one week after the Minister’s delegate decided to cancel our client’s visa, a Court dismissed the charge brought against our client on the basis that he had no case to answer. However, our client’s visa will remain cancelled until the Administrative Appeals Tribunal determines our client’s application for review (which could take months).

Thankfully, the Department of Home Affairs, less than 10 days after being of the view that our client’s ongoing presence in Australia presented such a risk to the community that his visa should be cancelled, granted our client a bridging visa authorising his continued presence in the Australian community until the AAT determines his application for review. Given that our client has never been convicted of any criminal offence, and that the sole charge that was brought against him was dismissed by a Court, we expect that the Tribunal will have no difficulties in setting aside the Tribunal’s cancellation decision (effectively reinstating our client’s student visa).

While this particular client should have things turn out okay (notwithstanding the additional stress, resources and inconvenience of having to go through a visa cancellation and Tribunal review process), this case does illustrate some of the serious risks that the Department’s approach to cancellations under s 116(1)(e) presents to non-citizens.

First of all, this case illustrates that a delegate of the Minister will have no difficulty satisfying themselves that a non-citizen’s ongoing presence in Australia poses a risk to the community or an individual if the non-citizen has merely been charged with a criminal offence involving violence, even in circumstances where the non-citizen has otherwise not ever been charged or convicted of any criminal offence in Australia or abroad.

Secondly, delegates are perfectly happy to rely on the mere fact that police have charged a non-citizen with an offence as the sole basis for forming a satisfaction that the non-citizen presents a risk. This approach fundamentally undermines the system of criminal justice that our society has refined over decades, if not centuries. It is not the task of police to determine with finality whether a person has committed an offence or not. That task is reserved for the Courts. If police knew that their decision to charge a non-citizen with an offence would be used as the sole basis for cancelling that non-citizen’s visa, they may well take a more conservative approach to deciding whether to charge the non-citizen. I have sufficient faith in our criminal justice system to believe that police should not be more conservative in their decisions to charge people with offences merely because an employee of the Department of Home Affairs might rely on that decision as the sole basis to ruin a non-citizen’s life.

Thirdly, this case demonstrates that even where the potential risk of harm can only be put at minimal, some delegates will exercise the cancellation power notwithstanding the significant prejudice that would be caused to a non-citizen by the cancellation. It appears that some delegates are of the view that once they are satisfied that a risk might exist, no amount of prejudice caused to a non-citizen by a cancellation is enough for them to think that their visa should not be cancelled.

This case also demonstrates that the ability to correct defective administrative decision-making is wholly dependent on a non-citizen’s ability to raise $882.00 within seven working days of being notified of the cancellation decision. While this client was able to raise that money, clients who receive cancellation decisions while being held in prison on remand (and many who are living in the community) have an extremely limited ability to pay that sum of money within such a short time (on top of their limited ability to file applications in the Tribunal within the same timeframe). In the case of those persons held on remand, who literally cannot themselves pay the filing fee, their ability to exercise their statutorily prescribed right to review the cancellation decision is wholly dependent on the ability and willingness of their friends and family on the outside to get the money together (this includes many New Zealand citizens who have lived in Australia for decades and since infancy).

Fifthly, this case demonstrates that police do not always ‘get it right’. I am hesitant to put it that way, because I don’t think it is the job of police to get it right every time they make a decision as to whether to charge a person with an offence. I don’t think any reasonable person thinks that every competent police officer performing their duties to the best of their ability only ever charges guilty people. Nor do I think it is desirable to hold police officers to that standard. Such a belief would fundamentally undermine the system of justice our society has developed over a long time. I have heard a lot of good arguments for why police officers should be more liberal (i.e. more willing to bring charges) where some uncertainty exists (although, those arguments tend to fade in persuasiveness when the prospect of visa cancellation predicated on a decision to charge is introduced to the mix). Many defendants are found not guilty, others have their charges dismissed and many charges are not pursued by the police and/or prosecutors.

We have spoken to many non-citizens whose visas were cancelled under s 116(1)(e) on the basis of outstanding charges only for those charges to have been dropped or dismissed. Unfortunately they were unable to file an application in the AAT (and pay the associated fee) within time (often because of the restrictions of being detained on remand) and now have no meaningful avenue to return to living in the Australian community despite never having committed, or been charged with, any criminal offence. In the case of New Zealand citizens, this can mean exclusion from the country that they have lived in for decades and since infancy despite having committed no criminal offence.

It is curious that the Minister for Immigration, Citizenship and Multicultural Affairs is also charged with protecting Australia’s cultural and social history and institutions. I, generally, have a great deal of respect of the system of law that our country inherited from the British empire and has refined since. It is a system of law that, historically, has tended to develop to protect people within society from arbitrary and capricious exercises of government power (or Royal power as it was centuries ago). However, the approach the Minister’s delegates take to exercising their powers under s 116(1)(e) often have the effect of undermining the system of criminal justice our society has developed, and leaves non-citizens who are later proven to have committed no criminal offences with no recourse to correct the damage done to their lives.

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. 

TRENDING: Visa Cancellations under section 116 of the Migration Act 1958

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 who have had their visas cancelled under a different section - section 116(1)(e). Here is what you need to know.