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Migration Amendment (Character and General Visa Cancellation) Bill 2014

Schedule 2 General visa cancellation amendments

   

Migration Act 1958

1  Subsection 33(10)

After “F”, insert “, FA”.

2  Subparagraph 48(1)(b)(ii)

After “116 (general power to cancel),”, insert “133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds),”.

3  Paragraph 116(1)(a)

Repeal the paragraph, substitute:

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

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

4  Paragraph 116(1)(e)

Repeal the paragraph, substitute:

                     (e)  the presence of its holder in Australia is or may be, or would or might be, a risk to:

                              (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 or individuals; or

5  After subsection 116(1)

Insert:

       (1AA)  Subject to subsections (2) and (3), the Minister may cancel a visa if he or she is not satisfied as to the visa holder’s identity.

       (1AB)  Subject to subsections (2) and (3), the Minister may cancel a visa (the current visa ) if he or she is satisfied that:

                     (a)  incorrect information was given, by or on behalf of the person who holds the current visa, to:

                              (i)  an officer; or

                             (ii)  an authorised system; or

                            (iii)  the Minister; or

                            (iv)  any other person, or a tribunal, performing a function or purpose under this Act; or

                             (v)  any other person or body performing a function or purpose in an administrative process that occurred or occurs in relation to this Act; and

                     (b)  the incorrect information was taken into account in, or in connection with, making:

                              (i)  a decision that enabled the person to make a valid application for a visa; or

                             (ii)  a decision to grant a visa to the person; and

                     (c)  the giving of the incorrect information is not covered by Subdivision C.

This subsection applies whenever the incorrect information was given and whether the visa referred to in subparagraph (b)(i) or (ii) is the current visa or a previous visa that the person held.

6  Subsection 116(2)

After “cancel a visa”, insert “under subsection (1), (1AA) or (1AB)”.

7  Subsection 116(3)

After “subsection (1)”, insert “, (1AA) or (1AB)”.

8  Subsection 117(1)

Omit “section 116”, substitute “subsection 116(1), (1AA), or (1AB)”.

9  Subsection 117(2)

Omit “section 116”, substitute “subsection 116(1)”.

10  After paragraph 118(c)

Insert:

                    (ca)  section 133A (Minister’s personal powers to cancel visas on section 109 grounds); or

                   (cb)  section 133C (Minister’s personal powers to cancel visas on section 116 grounds); or

11  Paragraph 118(f)

After “cancel”, insert “on character grounds”.

12  After Subdivision F of Division 3 of Part 2

Insert:

Subdivision FA Additional personal powers for Minister to cancel visas on section 109 or 116 grounds

133A   Minister’s personal powers to cancel visas on section 109 grounds

Action by Minister—natural justice applies

             (1)  If a notice was given under section 107 to the holder of a visa in relation to a ground for cancelling the visa under section 109, and the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal or a delegate of the Minister:

                     (a)  decided that the ground did not exist; or

                     (b)  decided not to exercise the power in subsection 109(1) to cancel the visa (despite the existence of the ground);

the Minister may set aside that decision and cancel the visa, if:

                     (c)  the Minister considers that the ground exists; and

                     (d)  the visa holder does not satisfy the Minister that the ground does not exist; and

                     (e)  the Minister is satisfied that it would be in the public interest to cancel the visa.

Note:          The grounds for cancellation under section 109 are non-compliance with section 101, 102, 103, 104 or 105.

             (2)  The procedure set out in Subdivision C does not apply to a decision under subsection (1).

Action by Minister—natural justice does not apply

             (3)  The Minister may cancel a visa held by a person who has been immigration cleared (whether or not because of that visa) if:

                     (a)  the Minister is satisfied that a ground for cancelling the visa under section 109 exists; and

                     (b)  the Minister is satisfied that it would be in the public interest to cancel the visa.

Note:          The grounds for cancellation under section 109 are non-compliance with section 101, 102, 103, 104 or 105.

             (4)  The rules of natural justice, and the procedure set out in Subdivision C, do not apply to a decision under subsection (3).

             (5)  The Minister may cancel a visa under subsection (3) whether or not:

                     (a)  the visa holder was given a notice under section 107 in relation to the ground for cancelling the visa; or

                     (b)  the visa holder responded to any such notice; or

                     (c)  the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal or a delegate of the Minister:

                              (i)  decided that the ground did not exist; or

                             (ii)  decided not to exercise the power in subsection 109(1) to cancel the visa (despite the existence of the ground).

             (6)  If a decision was made as mentioned in paragraph (5)(c), the power under subsection (3) to cancel a visa is a power to set aside that decision and cancel the visa.

Minister’s exercise of power

             (7)  The power in subsection (1) or (3) may only be exercised by the Minister personally.

             (8)  The Minister does not have a duty to consider whether to exercise the power in subsection (1) or (3), whether or not the Minister is requested to do so, or in any other circumstances.

             (9)  Subsection 138(4) does not prevent the Minister setting aside a decision of a Tribunal or a delegate and cancelling a visa in accordance with this section.

133B   Other provisions relating to the exercise of powers in section 133A

             (1)  Subject to subsection (2), the possible non-compliances that can constitute a ground for the cancellation of a visa under subsection 133A(1) or (3) include non-compliances that occurred at any time (whether before or after the commencement of this section), including non-compliances in respect of any previous visa held by the person.

             (2)  Section 115 (application of Subdivision C) applies in relation to section 133A in the same way that it applies in relation to Subdivision C.

             (3)  To avoid doubt, subsections 133A(1) and (3) apply:

                     (a)  whether or not the Minister became aware of the ground for cancelling the visa because of information given by the visa holder; and

                     (b)  whether the non-compliance because of which the ground is considered to exist was deliberate or inadvertent.

             (4)  Steps taken for the purposes of the Minister exercising the power in subsection 133A(1) or (3) in relation to an instance of possible non-compliance by a person do not prevent:

                     (a)  a notice under section 107 being given to that person because of another instance of possible non-compliance; or

                     (b)  the exercise of the power in subsection 133A(1) or (3) in relation to the person because of another instance of possible non-compliance.

             (5)  The non-cancellation of a visa under section 133A despite an instance of non-compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non-compliance.

133C   Minister’s personal powers to cancel visas on section 116 grounds

Action by Minister—natural justice applies

             (1)  If a notification was given under section 119 to the holder of a visa in relation to a ground for cancelling the visa under section 116, and the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal or a delegate of the Minister:

                     (a)  decided that the ground did not exist; or

                     (b)  decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground);

the Minister may set aside that decision and cancel the visa if:

                     (c)  the Minister considers that the ground exists; and

                     (d)  the visa holder does not satisfy the Minister that the ground does not exist; and

                     (e)  the Minister is satisfied that it would be in the public interest to cancel the visa.

Note:          The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).

             (2)  The procedures set out in Subdivisions E and F do not apply to a decision under subsection (1).

Action by Minister—natural justice does not apply

             (3)  The Minister may cancel a visa held by a person if:

                     (a)  the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and

                     (b)  the Minister is satisfied that it would be in the public interest to cancel the visa.

Note:          The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).

             (4)  The rules of natural justice, and the procedures set out in Subdivisions E and F, do not apply to a decision under subsection (3).

             (5)  The Minister may cancel a visa under subsection (3) whether or not:

                     (a)  the visa holder was given a notification under section 119 in relation to the ground for cancelling the visa; or

                     (b)  the visa holder responded to any such notification; or

                     (c)  the Migration Review Tribunal, the Refugee Review Tribunal, the Administrative Appeals Tribunal or a delegate of the Minister:

                              (i)  decided that the ground did not exist; or

                             (ii)  decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground); or

                     (d)  a delegate of the Minister decided to revoke, under subsection 131(1), a cancellation of the visa in accordance with section 128 in relation to the ground.

             (6)  If a decision was made as mentioned in paragraph (5)(c), the power under subsection (3) to cancel a visa is a power to set aside that decision and cancel the visa.

Minister’s exercise of power

             (7)  The power in subsection (1) or (3) may only be exercised by the Minister personally.

             (8)  The Minister does not have a duty to consider whether to exercise the power in subsection (1) or (3), whether or not the Minister is requested to do so, or in any other circumstances.

             (9)  Section 117 applies in relation to the power in subsection (1) or (3) in the same way as it applies to the cancellation of a visa under section 116.

           (10)  Subsection 138(4) does not prevent the Minister setting aside a decision of a Tribunal or a delegate and cancelling a visa in accordance with this section.

133D   Cancellation under subsection 133A(1) or 133C(1)—method of satisfying Minister of matters

                   The regulations may provide that, in determining for the purposes of subsection 133A(1) or 133C(1) whether:

                     (a)  a person; or

                     (b)  a person included in a specified class of persons;

satisfies the Minister that a ground for cancelling the person’s visa does not exist, any information or material submitted by or on behalf of the person must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the regulations.

133E   Cancellation under subsection 133A(1) or 133C(1)—notice of cancellation

             (1)  If a decision is made under subsection 133A(1) or 133C(1) to cancel a visa that has been granted to a person, the Minister must give the former holder of the visa a written notice that:

                     (a)  sets out the decision; and

                     (b)  specifies the provision under which the decision was made; and

                     (c)  sets out the reasons (other than non-disclosable information) for the decision.

             (2)  The notice is to be given in the prescribed manner.

             (3)  A failure to comply with this section in relation to a decision does not affect the validity of the decision.

133F   Cancellation under subsection 133A(3) or 133C(3)—Minister may revoke cancellation in certain circumstances

             (1)  This section applies if the Minister makes a decision (the original decision ) under subsection 133A(3) or 133C(3) to cancel a visa that has been granted to a person.

             (2)  For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

                     (a)  would be the reason, or a part of the reason, for making the original decision; and

                     (b)  is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

             (3)  As soon as practicable after making the original decision, the Minister must:

                     (a)  give the person, in the way that the Minister considers appropriate in the circumstances:

                              (i)  a written notice that sets out the original decision; and

                             (ii)  particulars of the relevant information; and

                     (b)  invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

             (4)  The Minister may revoke the original decision if:

                     (a)  the person makes representations in accordance with the invitation; and

                     (b)  the person satisfies the Minister that the ground for cancelling the visa referred to in subsection 133A(3) or 133C(3) (as the case requires) does not exist.

             (5)  The power in subsection (4) may only be exercised by the Minister personally.

             (6)  If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).

             (7)  Any detention of the person that occurred during any part of the period:

                     (a)  beginning when the original decision was made; and

                     (b)  ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

13  Paragraph 139(a)

Omit “E and F”, substitute “E, F and FA”.

14  Subsections 140(1) and (2)

Omit “116 or 128”, substitute “116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds)”.

15  Paragraph 140(4)(b)

After “131,”, insert “133F,”.

16  Paragraph 191(2)(d)

After “Subdivision C, D”, insert “, FA”.

17  Subsections 192(1) and (4)

After “Subdivision C, D”, insert “, FA”.

18  Paragraph 338(3)(c)

After “made under”, insert “section 133A or 133C,”.

19  At the end of subsection 338(3)

Add:

               ; or (d)  was made personally by the Minister under section 109 or 116 or subsection 140(2).

20  Paragraph 338(4)(b)

After “a decision”, insert “of a delegate of the Minister”.

21  Before paragraph 411(2)(a)

Insert:

                           (aa)  any decision to cancel a protection visa that is made personally by the Minister;

22  Application of amendments made by items 1 to 17

(1)       The amendments made by items 1 to 17 of this Schedule apply in relation to a visa held on or after the commencement of those items (even if the visa was granted before that commencement).

(2)       If a notification was given under section 119 of the Migration Act 1958 before the commencement of the amendments made by items 3 and 4 of this Schedule, that Act continues to apply in relation to that notification as if those amendments had not been made.

(3)       Subsection 116(1AB) of the Migration Act 1958 , as inserted by item 5 of this Schedule, applies to information given before, on or after commencement of that item.

(4)       The Minister cannot set aside a decision and cancel a visa, under any of the following provisions of the Migration Act 1958 as amended by item 12 of this Schedule, if that decision was made before the commencement of that item:

                     (a)  subsection 133A(1);

                     (b)  subsection 133A(3), as it has effect because of subsection 133A(6);

                     (c)  subsection 133C(1);

                     (d)  subsection 133C(3), as it has effect because of subsection 133C(6).

23  Application of amendments made by items 18 to 21

The amendments made by items 18 to 21 of this Schedule apply to decisions made on or after the commencement of those items.

(208/14)