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Section 109 Visa Cancellations Without Proper Delegation - A Holiday-Season Lump of Coal from the Department!

When it comes to the Department’s administration of Australia’s migration legislation, it is never safe to say that “there is nothing new under the Sun”, or that astonishing, amazing and in fact downright stupid/ridiculous things cannot happen!

Because they do!

Here’s a prime example, which we learned about from our colleague and friend Dr Sirous Ahmadi, the principal of Visayab Migration Services.

A client of Dr Ahmadi’s has sought merits review of a decision by the Department to cancel his “Subclass 866” visa under section 109 of the Migration Act.

Dr Ahmadi has recently received a letter from the AAT in this case which states that:

“The Department of Immigration and Border Protection has told the AAT that the officer who made the decision to cancel (the) visa did not have the delegated power to cancel visas under s. 109 at the time that they made that decision

The Minister for Immigration and Border Protection has the power to cancel visas under s. 109 of the Migration Act, but the Minister himself does not make most decisions to cancel visas. He delegates this power to officers of the Department. This means he lets the officers exercise the power on his behalf. He does this by making a delegation in writing under s. 496 of the Migration Act.

In (this) case, the power to cancel visas under s. 109 was not delegated to the officer who decided to cancel (the) visa at the time they made that decision. This has also happened in some other decisions the AAT is reviewing.”

The Department has told the AAT that as its view is that the cancellation decisions stand unless set aside by a Court or the AAT, it has not informed the affected people about the s. 109 delegation issue. The purpose of this letter is to provide you with this information so that you may consider any action that you wish to take.”

Let that sink in for a second.  The Department has evidently been allowing at least one – and who knows how many – employees who do not have proper delegation from the Minister – to cancel visas.

Such cancellation decisions are, in my opinion, completely unlawful.

To put it in legal terms, the cancellations are “beyond power”, they are “ultra vires”, they are utterly without authority, and they are “void ab initio” – in valid from the start.

Also, in my opinion, in this situation the Department should be coming forward to all persons whose visas were cancelled without proper delegation of the cancellation power and withdrawing the cancellations immediately.

For cases pending in the AAT: the Department should on its own initiative be approaching the AAT, conceding error, and withdrawing the cancellation decision.

The Department should not be clinging to the ridiculous and indefensible position that: “visa cancellations stand unless set aside by a Court or the AAT” – these visa cancellations cannot “stand” because they were invalid from the very start.

And what is the AAT’s reaction to being told by the Department that visa cancellations that are under review were made by an unauthorized officer?

Again, sorry to put it this way, but the Tribunal’s letter is “namby-pamby and as insipid as wet cardboard or 3-day old bowl of stale oatmeal!!! The AAT’s letter reads as follows:

“The AAT is considering making a guidance decision about what should happen in a case such as this. We will let you know if that happens. At this stage, you do not need to do anything about your review.”

Let that one sink in for a second too. You may want to pick your eyeballs off the floor after reading that and put them back in their sockets!!!

That’s right. The AAT is apparently not going to immediately jump on this, and immediately set aside every single cancellation that was made without proper authority!  It’s just “thinking about” issuing a “guidance decision”.

It’s absolutely unbelievable.

And then telling people” “at this stage you don’t have to do anything about your review”!

Hello! How about screaming to the heavens about this!  Writing to the Department demanding that the cancellation decision be withdrawn immediately!

And what is really really really awful about this  is that under section 82 of the Migration Act, visas that are cancelled cease to be in effect immediately on cancellation.   That means that persons whose visas have been wrongfully cancelled under section 109 may become unlawful non-citizens and may be subject to (or actually be held in) immigration detention.

In my view, this letter from the AAT shows that every single cancellation under section 109 is suspect, and vulnerable to legal challenge, and that in every case where a cancellation has occurred under section 109, steps should be taken to compel the Department to disclose whether the officer who made the cancellation decision did in fact hold the required written delegation from the Minister at the time of the decision.

Apparently, what has happened in the case of Dr Ahmadi’s client is not an isolated case.

And in my view, what has occurred here is utterly outrageous, disgusting, disgraceful and unlawful.

Questions? This email address is being protected from spambots. You need JavaScript enabled to view it.

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  • Guest
    Ganasan Arujunan Tuesday, 12 December 2017

    That is very interesting. I have a client whose visa was cancelled in 2015. I am now thinking of writing to the DIBP asking them to produce the authority of the delegate who issued the cancellation letter. Is that how I go about?

    In the present case, does that mean the DIBP will have to issue the notice of intention to cancel and go through the process all over again?

  • Guest
    John Findley Thursday, 14 December 2017

    Could I refer you to some other scandalous behavior, this time by the Tax Office. Whilst it is a little out of the normal migration issues, tax and migration are, after all, just administrative law.

    It goes to show the executive government is riddled with very bad people.

    Look at Binetter v Cmr of Taxation [2016] FCAFC 163; The commissioner seized documents essential to the applicant's case, refused to return them and claimed that the applicant had not met the burden of proof.

    Look at Shord v Commissioner of Taxation [2017] FCAFC 167, especially Justice Logan's scorching criticism where the Commissioner knew of and admitted facts, but then sought judgement by ignoring the agreed facts.

    John Findley

  • Guest
    Nicholas Houston Monday, 18 December 2017

    If the cancellation decision is set aside, as it should be, would the Department not just go through a second cancellation process and make a valid cancellation decision? What in the background context of this case would make a second cancellation less palatable for the applicant? Was the decision unlawful for other reasons or is there a Partner visa application coming down the line, or something else?

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