the blog of Sentry Law

So you beat visa cancellation under s 501? Get a new visa ASAP to avoid the risk of cancellation by the Minister under s 501A(2)!

Joel McComber
9 March 2020

In late 2018 and early 2019 our I acted for a New Zealand citizen in an application to the Administrative Appeals Tribunal for review of a decision to cancel his subclass 444 visa under s 501(2) of the Migration Act 1958. Thankfully, on 22 January 2019 the Tribunal found in our client’s favour, set aside the cancellation decision and reinstate our client’s visa. You can read the Tribunal’s full decision here.

In August 2019 our client departed Australia temporarily and returned a week later. Our client’s Special Category Visa that was considered for cancellation by both the Minister’s delegate and the Tribunal ceased on our client’s departure from Australia. Our client was granted a new Special Category Visa on his return to Australia (his 2019 visa).

However, some 12 months after the Tribunal’s decision the National Character Consideration Centre notified our client of the Minister’s intention to personally consider cancellation of our client’s 2019 visa under s 501A(2) of the Migration Act 1958. Section 501A(2) empowers the Minister to set aside a decision of a delegate or the Tribunal made under s 501 or s 501CA that is beneficial to a non-citizen and substitute a decision adverse to the non-citizen.

Our firm immediately notified the National Character Consideration Centre that we considered that the Minister did not have the power to cancel our client’s 2019 visa under s 501A(2) because that visa was not the subject of the Tribunal’s consideration in its January 2019 decision (in fact, our client’s 2019 visa did not exist until more than six months after the Tribunal’s decision was made).

After threatening to bring an urgent application in the Federal Court of Australia seeking interlocutory and final injunctive relief restraining the Minister from unlawfully purporting to cancel our client’s visa, the Minister eventually caved and accepted that he did not have the power to cancel our client’s 2019 visa under s 501A(2). By threatening to bring an urgent injunction, and not just waiting for a cancellation decision to be made, our client was able to avoid spending months (if not longer) stuck in immigration detention while the Court would have considered his application for judicial review. Below you can find copies of:

  1. our draft application to the Court seeking urgent interlocutory and final injunctive relief; and
  2. the letter from the Minister’s lawyers confirming that the Minister’s foreshadowed attempt to consider cancellation our client’s visa was unlawful.

What is the relevance of this case for other non-citizens who have beaten visa cancellation under s 501(2) or had a mandatory cancellation revoked under s 501CA? It is relatively simple: It might be a good idea to get a new visa, ASAP.

If you’re a New Zealand citizen, it might be in your interests to take a quick trip out of Australia. When you return, you will be granted a new Special Category (subclass 444) Visa that the Minister cannot attempt to cancel under s 501A(2). If you’re a permanent resident, it might be worth applying for a Resident Return Visa (RRV) which, if granted, will result in the cessation of the permanent visa that was considered for cancellation or was the subject of a revocation decision.

However, keep in mind that the Minister may attempt to refuse a subsequent application for an RRV visa on character grounds under s 501(1). It is questionable whether, in the absence of intervening adverse events, such an approach would be lawful (it may be that the Minister cannot make contradictory decisions on what is effectively the same facts and the same issue). This is less of a risk for New Zealand citizens because, as a matter of policy, Special Category Visas are not considered for refusal under s 501(1) of the Act.

If you have received a Notice of Intention to Consider Cancellation (NOICC), contact our firm immediately to find out if you have any grounds to apply to the Court and attempt to prevent the Minister (or the Department) from making an unlawful decision to cancel your visa. As the above example shows, quick thinking and showing the fortitude to take a matter to the Court on an urgent basis can sometimes be enough to get the Minister to back down and avoid the need for a non-citizen to spend long periods stuck in immigration detention!

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