Section 128 visa cancellation without notice while offshore

Section 128 visa cancellation without notice while you are outside Australia means that if the Minister is satisfied that there is a ground for cancelling your visa under section 116, the Minister may cancel your visa without notifying you while you are not in Australia. However, after the Minister has cancelled your visa, the Department will write to inform you of the section 128 visa cancellation. You will be given 28 days from the date of the letter to argue why you think the ground for cancellation does not exist and/or to give reasons why your visa should not be cancelled.

If you are able to argue that the ground for the section 128 visa cancellation without notice while you are outside Australia does or did not exist, the cancellation of your visa will be revoked. Also, if you cannot argue that the ground for your section 128 visa cancellation does or did not exist, but there is a reason why the visa should not have been cancelled, the section 128 visa cancellation may be revoked.

You should be aware that the Department cannot give you an extension of time to respond, hence you must respond within the given time frame otherwise the revocation of the section 128 visa cancellation will not be considered.

Section 128 visa cancellation without notice applies to both permanent and temporary visas of persons who are outside Australia if there is a ground for cancelling the visa under section 116 and it is appropriate to cancel the visa without notice to the visa holder.

Even though section 116 cancellation power is discretionary but section 116(3) does not apply to mandatory cancellation under section 128. However, section 128 visa cancellation without notice only applies to the visa holder who is outside Australia and cannot be used while the visa holder is in Australia.

Grounds for section 128 visa cancellation without notice

The grounds for section 128 visa cancellation are set out in section 116:

(1)(a)            the decision to grant the visa was based, wholly or partly, on a particular fact or circumstances that is no longer the case or that no longer exists; or

(1)(aa)         the decision to grant the visa was based, wholly or partly, on a particular fact or circumstances, and that fact or circumstances did not exist; or

(1)(b)            the visa holder has not complied with a condition of the visa; or

(1)(c)            another person required to comply with a condition of the visa has not complied with that condition; or

(1)(d)            if the visa holder has not entered Australia or has entered but has not been immigration cleared, given incorrect information; or

(1)(e)            the presence of the visa holder in Australia is or may be, or would or might be, a risk to (click here to learn more about section 116(1)(e) cancellation):

                    (i)       the health, safety or good order of the Australian community or a segment of the Australian community; or

                    (ii)      the health or safety of an individual(s); or

(1)(f)             the visa should not have been granted or the grant was in contravention of the Migration Act or another law of the Commonwealth; or

(1)(fa)           if the visa is a Student visa (click here to learn more):

                    (i)       the visa holder is not, or is likely not to be, a genuine student; or

                    (ii)      the visa holder has engaged, is engaging, or is likely to engage, while in Australia, in conduct or omissions not contemplated by the visa; or

(1)(g)            a prescribed ground for cancelling a visa applies to the visa holder.

(1AA)            the Minister is not satisfied as to the visa holder’s identity (subject to subsections (2) and (3)).

 (1AB)            the Minister is satisfied that (subject to subsections (2) and (3)):

• Incorrect information was given to:
• an officer; or
• an authorised system; or
• the Minister; or
• any other person, or a Tribunal performing a function or purpose under the Migration Act; or
• any other person or body performing a function or purpose in an administrative process in relation to the Migration Act; and
• the incorrect information was taken into account in, or in connection with, making:
• a decision that enabled the person to make a valid application for a visa; or
• a decision to grant a visa; and
• the giving of the incorrect information not covered by Subdiv C.

You should note that section 116(1AB) applies whenever the incorrect information was given and whether the visa is the current visa or a previous  visa that the person held.

(1AC)           the Minister is satisfied (subject to subsections (2) and (3) that:

• a benefit was asked for or received by, or on behalf of, the visa holder who holds the current visa from another person in return for a sponsorship-related event; or
• a benefit was offered or provided by, or on behalf of, the visa holder who holds the current visa to another person in return for a sponsorship-related event.

(1AD)            Subsection (1AC) applies:

• whether or not the visa holder held the current visa or any previous visa at the time the benefit was asked for, received, offered or provided; and
• whether or not the sponsorship-related event relates to the current visa or any previous visa that the visa holder held; and
• whether or not the sponsorship-related event occurred.

(2)                The Minister is not to cancel a visa under (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.

(3)                if the Minister may cancel a visa under (1), (1AA) or (1AB), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.

(4)                “benefit” includes (section 245AQ):

                    (a) a payment or other valuable; and

                    (b) a deduction of an amount; and

                    (c) any kind of real or personal property; and

                    (d) an advantage; and

                    (e) a service; and

                    (f)  a gift.

“sponsorship related event” refers to a sponsored work visa (section 245AQ)  such as Subclass 482 visa (click here to learn more).

Is it appropriate for section 128 visa cancellation without notice?

Once the Department is satisfied that there is ground for section 128 visa cancellation, it must also be satisfied that it is appropriate to cancel the visa without notice. This is because if a notice is given, there is a risk that the visa holder would respond to the notice by returning to Australia as it would be more difficult for the visa to be cancelled and the visa holder removed from Australia.

Section 128 visa cancellation without notice applies to permanent visa

A permanent visa can be cancelled under section 128 visa cancellation without notice. However, the Department must be satisfied that:

• 1 of the grounds set out in section 116 exists; and
• it is appropriate to cancel the visa without notice; and
• the visa holder is outside Australia.

Section 128 visa cancellation without notice is a discretionary power and the Department has to consider the following non-prescribed matters:

1. the purpose of the travel and stay in Australia – whether there is a compelling need to travel to and remain in Australia.
2. the extent of previous compliance with visa conditions
3. the degree of hardship (e.g. financial, psychological, emotional, etc) that may be caused to the visa holder and any family members as a result of a cancellation decision.
4. the circumstances (e.g. extenuating circumstances beyond control) in which the ground for cancellation arose (e.g., breakdown of relationship due to family violence – beyond the control of the visa holder).
5. visa holder’s past and present behaviour towards the Department (e.g. truthful and cooperative in dealing with the Department).
6. whether there are persons in Australia whose visas would, or may, be cancelled under section 140.
7. whether there are mandatory legal consequences to the cancellation, e.g.:
8. whether indefinite detention is a possible consequence due to Australia’s non-refoulement obligations
9. whether the visa holder will be prevented from making a valid visa application without the Minister personal intervention, for e.g., section 46A, section 46B, section 48, section 48A, section 91E, section 91K   and section 91P.
10. whether cancellation would cause the visa holder to become an unlawful non-citizen and liable to be detained under section 189 and removed under section 198.
11. whether visa cancellation would breach Australia’s international agreements, for e.g. CROC (best interests of the child) or non-refoulement obligations.
12. if the visa to be cancelled is a permanent visa, family, business and other ties in Australia.
13. any other relevant matters.

If the Department cancelled your visa under the section 128 visa cancellation without notice while outside Australia, the Department is required by section 129 to notify you in writing the basis for the cancellation and give you 28 days to show why the cancellation decision should be revoked.

Revocation of section 128 visa cancellation without notice

The Department may revoke section 128 visa cancellation under section 131 power. Once the Department made a decision whether to revoke section 128 visa cancellation without notice, you cannot make a second request as the section 131 power is considered to be spent.

You should be aware that section 128 visa cancellation without notice cannot be revoked if your visa is cancelled under (adverse ASIO assessment):

• section 116(1)(g) and reg. 2.43(1)(a)(i)(A) or
• section 116(1)(g) and reg. 2.43(1)(a)(i)(B) or
• section 116(1)(g) and reg. 2.43(1)(a)(ii) or
• section 116(1)(g) and reg. 2.43(1)(b).

Notifying section 128 visa cancellation without notice revocation request

Once the Department has made a decision whether or not to revoke the section 128 visa cancellation, you will be notified in writing as required under section 132.

If the Department made a decision to revoke the section 128 visa cancellation without notice, your cancelled visa has the effect as if it was granted again (section 133). This means that the cancellation decision was not null and void from the time it was made. What this mean is, if your visa has a validity for, say 12 months, upon revocation, your visa is taken to again be granted for that same period (eg 12 months) and not until a particular date unless your visa was granted until a particular date and that date has not already passed, then your visa will be re-granted until the original date, unless the Department vary the “in effect’ date.

You should be aware that a permanent visa can be cancelled while you are in Australia for a number of reasons, click here to learn more.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help your understand the significant of section 128 visa cancellation without notice while you are outside Australia or click here to find out visas.

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.