Misuse of Cancellation Powers under Section 116 of the Migration Act 1958

Misuse of Cancellation Powers under Section of the Migration Act 1958

In recent years, there have been concerns that these powers are being exploited at the airport to cancel the visas of people who have not breached any of their visa conditions, committed any serious crimes, or posed any real threat to the community.

Section 116 of the Migration Act 1958[1] gives the Minister for Immigration, Citizenship and Multicultural Affairs (MICMA) the power to cancel visas on several grounds, including a student visa if the visa holder is not, or is likely not to be, a genuine student.

One of the main concerns is that the Minister’s power to cancel visas is discretionary. This means that the Minister can cancel a visa without having to provide a detailed explanation of their reasons for doing so. This makes it difficult for people to challenge visa cancellations, even if they are unfair.

However Sultan Legal successfully challenged Ministers’ decision to cancel a student visa under section 116 (1)(fa) of the Migration Act 1958[1]. In Mohammed V Minister for Immigration, Citizenship and Multicultural Affairs [2023][2], the Federal Circuit and Family Court of Australia (FCFCOA) quashed the Minister’s decision to cancel the applicant’s student visa.

The applicant, Mr. Mukarram Uddin Mohammed, a citizen of India was granted a student visa subclass 500 in 2022 for a package course consisting of a Diploma of Project Management leading to an Advance Diploma of Business.

During his studies, the applicant developed health issues and went to India for an extended period from April 2023 until 7 September 2023. The Applicant returned to Australia to continue his studies on 8 September 2023 and was interviewed by the Visa Officer at the Airport at or around 9:00 p.m. During the preliminary checks, the visa officer was not able to find a Certificate of Enrolment (“COE”) in the Prism record. Henceforth the applicant was detained for further questioning.

Before the interview, the applicant’s phone was confiscated by Australian border force officers (“Officer”) by exercising powers under section 252 of the Migration Act 1958(Cth)[3] and the applicant also provided his passcode for the phone as requested.

After conducting a lengthy interview, Mr. Mohammed was issued a notice of intention to consider canceling his visa followed by an hour-long investigation leading to the final decision of canceling his visa under s116(fa)(i) for the following reasons:

Mr M Mohammed did not complete the course he was enrolled in.
His outstanding fee was due.
He did not communicate the demise of his father to the university.
He failed to establish that he was a genuine student,

Subsequently, Mr. Mohammed was detained by the Australian Federal Police and was due to be deported within 72 hours.

Sultan Legal, on grounds of procedural unfairness and others, fought relentlessly to provide relief in which an interlocutory injunction was granted by The Federal Circuit and Family Court of Australia not to deport Mr Mohammed from Australia. Later, after the final hearing, the decision to cancel the student visa was quashed.

What Can you do if you are detained and questioned at the Airport?

It is important to mention here that the people who come to Australia, for various reasons are detained and interviewed by the Australian Border Force at the airport, and do not know their rights. This situation can be challenging for someone who is tired and jetlagged after a long journey or does not have sufficient information available at that time to provide it to the interviewing officer.

The first thing to understand is that the Powers under section 116 of the Migration Act are discretionary which means the interviewing officer has to establish the grounds for cancellation and has to provide proper reasoning.

Suppose for some reason you are not able to provide the necessary information requested by the officer. In that case, you must demand access to legal assistance or ask them to allow you to speak to your family member or university/college before the officer exercises cancellation powers.

You may have received a notice of intention to consider visa cancellation and you are wondering where and when to seek legal help. Our team of Immigration lawyers has vast experience in managing appeals for immigration cases in a swift manner.

If you need to discuss your case with our immigration lawyers while in Australia or Overseas, get in touch with us today and book a free consultation.

Kashif Sultan