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MIGRATION ACT 1958 - SECT 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 Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review 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 Administrative Appeals Tribunal or the former Migration Review Tribunal or former Refugee Review 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.



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