Australian Immigration Daily News

Do you consider that it is difficult/impossible to challenge a visa cancellation decision made under section 109 of the Migration Act?

Maybe in some cases it won’t be as hard as it may seem!

Recall that under section 109, the Minister may cancel the visa of a person who has been “immigration cleared” if the visa holder has not complied with sections 101 – 105 of the Act.

These sections in turn require that the answers given on a visa application or a passenger card must be correct; that changes in circumstances that affect the correctness of an answer given be notified to the Department; and that particulars of incorrect answers must be given to the Department.

What happens though if the decision to cancel a visa under section 109 is made not by the Minister but instead by a delegate and the cancellation power has not been delegated to the delegate?

Our colleague Dr Sirous Ahmadi has provided us with a copy of correspondence from the Department relating to one of his clients which states that the visa cancellation power was not delegated by the Minister in several decisions that have been appealed to the AAT, including the case of Dr Ahmadi’s client.

The Tribunal’s correspondence states that the Tribunal held a hearing on 29 March 2018 in relation to a “specified application” where the section 109 cancellation power had not been delegated

Also, apparently in that “specified” case, the Tribunal accepted submissions from the Department that it did have jurisdiction to conduct a merits review of the decision of the delegate to cancel the visa, even where the cancellation power had not been delegated by the Minister.  And apparently the Tribunal also proceeded, in this specified case, to affirm the cancellation decision.

According to the correspondence received by Dr Ahmadi, the Department made submissions that the Tribunal did have jurisdiction to review a cancellation decision where the cancellation power had not been delegated, and apparently the Tribunal accepted that submission.

The Tribunal’s correspondence states that the case involving the specified application has now been “appealed” to the Federal Circuit Court.

In those FCC proceedings, the applicant is contending that cancellation decisions made in the absence of a proper delegation of the cancellation power are invalid and of no effect and that the Tribunal has no power to conduct a full merits review of such a cancellation decision. The applicant also contended in the FCC judicial review application that in such cases, the Tribunal’s review powers extend only to determining whether the cancellation power had been validly delegated.

The correspondence from the Tribunal states that the Tribunal intends to await the FCC’s decision, and that after that decision is handed down, the Tribunal may issue a “guidance decision” to govern how the Tribunal should proceed where there has not been a valid delegation.

The critically important lesson to be drawn from this correspondence from the Tribunal is that it is absolutely essential for migration agents and lawyers who are acting for visa holders who have had their visas cancelled under section 109 of the Act to make enquiries to determine whether the delegate who issued the cancellation notice did have delegation from the Minister to exercise the s 109 cancellation power.

I would suggest, as it was argued in the pending application in the FCC, that in circumstances where the cancellation power was not properly delegated, a purported cancellation is invalid, and of no effect.

So yes, the apparent failure of the Minister to delegate the cancellation power may very well have rendered some cancellations invalid.

And yes, it surely appears that cancellations made where the visa cancellation power has not been properly delegated to the officer who issued the cancellation decision are vulnerable to challenge.