Case Study

Can the Minister cancel my permanent visa and how do I prevent the cancellation?

The Minister can cancel your permanent visa if you have been imprisoned for more than 12 months (section 501(3A)) of the Migration Act 1958 (“the Act”)). However, you can request the cancellation order be revoked (under section 501CA of the Act). If the Minister decided not to revoke the cancellation of your visa, you can apply to the AAT (Administrative Appeals Tribunal) to review the decision not to revoke the cancellation.

The Minister can also cancel your permanent visa if he is satisfied that you do not pass the character test (under section 501(6)(a) of the Act) on the basis of section 501(7)(c) of the Act. Generally, you do not pass the character test if you have “substantial criminal record” and whether it is in the national interest to cancel your permanent visa.

If the AAT finds in your favour, it has the power to set aside the Minister’s decision and revoke the cancellation of your permanent visa. Your visa will then be reinstated.

However, the Minister can use his personal discretion to set aside the AAT’s decision and proceed to cancel your permanent visa (under section 501BA of the Act). You may only be able to challenge the Minister’s discretion in a very limited circumstances. You will have to go to Court to argue that the Minister’s decision is affected by jurisdictional error. What this mean is that you must prove the Minister in cancelling your permanent visa has made an error in law.

In addition, the Minister can override the AAT’s decision to set aside the cancellation order. This is because there is no principle that, as a matter of general power, an executive decision (for eg, AAT) may not be overridden by another executive decision (for eg, Minister) (Candemir v Minister for Home Affairs [2019] FCAFC 33 at 41)

The Court’s jurisdiction or authority is supervisory and can only examine if the Minister’s exercise of power was lawful, and whether he has made the decision he was authorised to make. The Court is not permitted to make a general merit review of the Minister’s decision to cancel your permanent visa.

 

Can I argue that I have been living in Australia since I was a little boy and have never returned to my birth country?

Generally, what the Minister take into account in determining what is in the best national interest is a matter for the Minister (Mandafferi v MIMA [2002] FCAFC 220 at [89]; MIMIA v Huynh [2004] FCAFC 256; 139 FCR 505 at [74])). What this mean is that it is up to the Minister to determine what factors are to be regarded as relevant when considering whether to cancel or refuse a visa is in the national interest and whether he should exercise the discretion given to him under section 501A(2) of the Act (Gbojueh v MIAC [2012] FCA 288; (2012) 202 FCR 417).

 

What if I have children who are Australian citizens?

The Minister may accept that cancelling your permanent visa and deporting you may not be in the best interests of your Australian children, but if the Minister consider that you are a risk to the Australian community outweigh not cancelling your permanent visa. What this mean is that national interest can override your Australian children best interests even though a child’s best interests are covered under the Convention on the Rights of the Child.

 

What if my Australian citizen children are under 18 and have medical conditions?

The Minister is not required to consider the best interests of your children, even if they are under 18 or have medical conditions, when considering cancelling your permanent visa. This is because the definition of a dependent child under the Act (reg. 1.03) does not include the interests of dependent child to be considered as the primary consideration as the rule of natural justice is excluded by section 501BA(3) of the Act. Furthermore, the Minister does not have an obligation or duty to make enquires about your personal circumstances (MIBP v Maioha [2018] FCAFC 216 at [48]).

 

Can I provide documents or make representations to the Minister when he uses his personal discretion to can my permanent visa?

Under section 501BA(3) of the Act, the Minister is not required to provide you the opportunity to make representations or allow you to provide any further information as he is not required to provide you with natural justice or procedural fairness.

 

If the AAT has previously set aside the Minister decision not to revoke the cancellation order, is the Minister required to evaluate the material considered by the AAT?

Generally, the Minister is not required to evaluate for himself the material that was considered by the AAT or review the decision of his own delegate (section 501BA(2) of the Act). Similarly, the Minister is not required by section 501BA to carry out the same evaluation as the AAT (Candemir v Minister for Home Affairs [2019] FCAFC 33 at 27).

Even if the Court accepted that the Minister’s decision was unlawful, it is not permitted to substitute the Minister’s decision to cancel your permanent visa regardless of whether it is correct or preferable to reinstate your visa (Plaintiff M64/2015 v MIBP [2015] HCA 50; 258 CLR 173 at [23]). The Court can only direct the Minister to consider your case again and the Minister may find other reasons to cancel your permanent visa again.

Visa cancellation is a complex and complicated matter, engaging an immigration lawyer will help you keep your permanent visa.