(a) prescribe matters to which the Minister must, or must not, have regard in determining whether the Minister is satisfied as mentioned in:
(i) a paragraph of subsection (1) or (1AC); or
(ii) subsection (1AA) or (1AB); or
(b) prescribe matters to which the Minister may have regard in determining whether the Minister is satisfied as mentioned in:
(i) a paragraph of subsection (1) or (1AC); or
(ii) subsection (1AA) or (1AB); or
(c) specify the weight to be given to a matter prescribed under paragraph (a) or (b) of this subsection.
(1B) Subsection (1A) does not limit the matters to which the Minister may have regard in determining whether the Minister is satisfied as mentioned in:
(a) a paragraph of subsection (1) or (1AC); or
(b) subsection (1AA) or (1AB).
(2) The Minister is not to cancel a visa under subsection (1), (1AA), (1AB) or (1AC) if there exist prescribed circumstances in which a visa is not to be cancelled.
(3) If the Minister may cancel a visa under subsection (1), (1AA), (1AB) or (1AC), the Minister must do so if there exist prescribed circumstances in which a visa must be cancelled.
(4) In this section:
benefit has a meaning affected by section 245AQ.
sponsorship‑related event has the meaning given by section 245AQ.
117 When visa may be cancelled
(1) Subject to subsection (2), a visa held by a non‑citizen may be cancelled under subsection 116(1), (1AA), (1AB) or (1AC):
(a) before the non‑citizen enters Australia; or
(b) when the non‑citizen is in immigration clearance (see section 172); or
(c) when the non‑citizen leaves Australia; or
(d) while the non‑citizen is in the migration zone.
(2) A permanent visa cannot be cancelled under subsection 116(1) if the holder of the visa:
(a) is in the migration zone; and
(b) was immigration cleared on last entering Australia.
118 Cancellation powers do not limit or affect each other
The powers to cancel a visa under:
(a) section 109 (incorrect information); or
(b) section 116 (general power to cancel); or
(c) section 128 (when holder outside Australia); or
(ca) section 133A (Minister’s personal powers to cancel visas on section 109 grounds); or
(cb) section 133C (Minister’s personal powers to cancel visas on section 116 grounds); or
(cc) section 134B (emergency cancellation on security grounds); or
(d) section 134 (cancellation of business visas); or
(da) section 137Q (cancellation of regional sponsored employment visas); or
(e) section 140 (consequential cancellation of other visas); or
(ea) section 500A (refusal or cancellation of temporary safe haven visas); or
(f) section 501, 501A, 501B or 501BA (special power to refuse or cancel on character grounds);
are not limited, or otherwise affected, by each other.
Subdivision E—Procedure for cancelling visas under Subdivision D in or outside Australia
118A Exhaustive statement of natural justice hearing rule
(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
119 Notice of proposed cancellation
(1) Subject to Subdivision F (non‑citizens outside Australia), if the Minister is considering cancelling a visa, whether its holder is in or outside Australia, under section 116, the Minister must, in writing, notify the holder that there appear to be grounds for cancelling it and:
(a) give particulars of those grounds and of the information (not being non‑disclosable information) because of which the grounds appear to exist; and
(b) invite the holder to show within a specified time that:
(i) those grounds do not exist; or
(ii) there is a reason why it should not be cancelled.
(2) The notification under subsection (1) must be given in the prescribed way.
(4) The other provisions of this Subdivision do not apply to a cancellation:
(a) under a provision other than section 116; or
(b) to which Subdivision F applies.
120 Certain information must be given to visa holder
(1) In this section, relevant information means information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for cancelling a visa; and
(b) is specifically about the holder or another person and is not just about a class of persons of which the holder or other person is a member; and
(c) was not given by the holder; and
(d) was not disclosed to the holder in the notification under section 119.
(2) The Minister must by written notice:
(a) give particulars of the relevant information to the holder; and
(b) set out why it is relevant to the cancellation; and
(c) invite the holder to comment on it.
(3) The notice under subsection (2) must be given in the prescribed way.
121 Invitation to give comments etc.
(1) An invitation under paragraph 119(1)(b) or 120(2)(c) is to specify whether the response to the invitation may be given:
(a) in writing; or
(b) at an interview between the holder and an officer; or
(c) by telephone.
(2) Subject to subsection (4), if the invitation is to respond otherwise than at an interview, the response is to be given within a period specified in the invitation, being a prescribed period or, if no period is prescribed, a reasonable period.
(3) Subject to subsection (5), if the invitation is to respond at an interview, the interview is to take place:
(a) at a place specified in the invitation, being a prescribed place or, if no place is prescribed, a reasonable place; and
(b) at a time specified in the invitation, being a time within a prescribed period or, if no period is prescribed, within a reasonable period.
(4) If a person is to respond to an invitation within a prescribed period, that period may be extended by the Minister for a prescribed further period, and then the response is to be given in the extended period.
(5) If a person is to respond to an invitation at an interview at a time within a prescribed period, that time may be changed by the Minister to:
(a) a later time within that period; or
(b) a time within that period as extended by the Minister for a prescribed further period;
and then the response is to be given at an interview at the new time.
(6) This section is subject to sections 125 and 126.
122 Prescribed periods
Regulations prescribing a period or other time limit relating to a step in considering the cancellation of a visa may prescribe different limits relating to that step and specify when a particular limit is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a specified class; or
(b) visa holders in specified circumstances; or
(c) visa holders in a specified class of persons (which may be visa holders in a specified place); or
(d) visa holders in a specified class of persons (which may be visa holders in a specified place) in specified circumstances.
123 Failure to accept invitation not require action
If a visa holder does not respond to an invitation under paragraph 119(1)(b) or 120(2)(c) before the time for giving it has passed or tells the Minister that the visa holder does not wish to respond, the Minister may make the decision about cancellation without taking any further action about the information.
124 When decision about visa cancellation may be made
(1) Subject to section 120 (give information) and subsection (2), the Minister may cancel a visa at any time after notice about the cancellation has been given under section 119 and after whichever one of the following happens first:
(a) the holder responds to the notice;
(b) the holder tells the Minister that the holder does not wish to respond;
(c) the time for responding to the notice passes.
(2) The Minister is not to cancel a visa after inviting the visa holder to comment on information and before whichever one of the following happens first:
(a) the comments are given;
(b) the holder tells the Minister that the holder does not wish to comment;
(c) the time for commenting passes.
125 Application of Subdivision to non‑citizen in immigration clearance
If a non‑citizen in immigration clearance who is not taken into questioning detention is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, he or she ceases to be in immigration clearance.
126 Application of Subdivision to non‑citizen in questioning detention
(1) If a non‑citizen in questioning detention who is not released before the end of the 4 hours for which he or she may be detained is given an invitation under paragraph 119(1)(b) or 120(2)(c), the period within which he or she may respond to the invitation is to end when, or before, those 4 hours end.
(2) If a non‑citizen who has been given an invitation under paragraph 119(1)(b) or 120(2)(c) (whether in immigration clearance or otherwise) is taken into questioning detention and not released before the end of the 4 hours for which he or she may be detained, the period within which he or she is to respond to the invitation is to end when, or before, those 4 hours end.
127 Notification of decision
(1) When the Minister decides to cancel a visa, he or she is to notify the visa holder of the decision in writing.
(2) Notification of a decision to cancel a visa must:
(a) specify the ground for the cancellation; and
(c) if the former visa holder has a right to have the decision reviewed by application under Part 5—state:
(i) that the decision can be reviewed by the ART; and
(ii) the time in which the application for review may be made; and
(iii) who can apply for the review; and
(iv) where the application for review can be made.
(2A) The notification under subsection (1) must be given in the prescribed way.
(3) Failure to give notification of a decision does not affect the validity of the decision.
(4) Section 267 (decision‑maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notifications given under this section.
(5) Section 268 (requesting reasons for a reviewable decision from decision‑maker) of the ART Act does not apply in relation to decisions to cancel a visa.
Subdivision F—Other procedure for cancelling visas under Subdivision D outside Australia
127A Exhaustive statement of natural justice hearing rule
(1) This Subdivision is taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters it deals with.
(2) Sections 494A to 494D, in so far as they relate to this Subdivision, are taken to be an exhaustive statement of the requirements of the natural justice hearing rule in relation to the matters they deal with.
128 Cancellation of visas of people outside Australia
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non‑citizen is outside Australia;
the Minister may, without notice to the holder of the visa, cancel the visa.
129 Notice of cancellation
(1) If the Minister cancels a visa under section 128, he or she must give the former holder of the visa a written notice:
(a) stating the ground on which it was cancelled; and
(b) giving particulars of that ground and of the information (not being non‑disclosable information) because of which the ground was considered to exist; and
(c) inviting the former holder to show, within a specified time, being a prescribed time, that:
(i) that ground does not exist; or
(ii) there is a reason why the visa should not have been cancelled; and
(d) stating that, if the former holder shows, within the specified time, that the ground does not exist, the cancellation will be revoked; and
(e) stating that, if the former holder shows that there is a reason why the visa should not have been cancelled, the cancellation might be revoked.
(2) The notice is to be given in the prescribed way.
(3) Failure to give notification of a decision does not affect the validity of the decision.
130 Prescribed periods
Regulations prescribing a period for the purpose of paragraph 129(1)(c) may prescribe different periods and specify when a particular period is to apply, which, without limiting the generality of the power, may be to:
(a) visas of a specified class; or
(b) former visa holders in specified circumstances; or
(c) former visa holders in a specified class of persons (which may be former visa holders in a specified place); or
(d) former visa holders in a specified class of persons (which may be former visa holders in a specified place) in specified circumstances.
131 Decision about revocation of cancellation
(1) Subject to subsection (2), after considering any response to a notice under section 129 of the cancellation of a visa, the Minister:
(a) if not satisfied that there was a ground for the cancellation; or
(b) if satisfied that there is another reason why the cancellation should be revoked;
is to revoke the cancellation.
(2) The Minister is not to revoke the cancellation of a visa if there exist prescribed circumstances in which the visa must be cancelled.
132 Notification of decision about revocation of cancellation
(1) When, under section 131, the Minister revokes or does not revoke the cancellation of a visa, he or she is to notify the visa holder or former visa holder of the decision in writing.
(2) The notification under subsection (1) must be given in the prescribed way.
133 Effect of revocation of cancellation
(1) If the cancellation of a visa is revoked, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.
(2) Subject to subsection (1), if the cancellation of a visa is revoked, the Minister may vary the time the visa is to be in effect or any period in which, or date until which, the visa permits its holder to travel to, enter and remain in Australia, or to remain in Australia.
Subdivision FA—Additional personal powers for Minister to cancel visas on section 109 or 116 grounds
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 ART, former Administrative Appeals Tribunal, 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 ART, former Administrative Appeals Tribunal, 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 the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate and cancelling a visa in accordance with this section.
133B Other provisions relating to the exercise of powers in section 133A
(1) Subject to subsection (2), the possible non‑compliances that can constitute a ground for the cancellation of a visa under subsection 133A(1) or (3) include non‑compliances that occurred at any time (whether before or after the commencement of this section), including non‑compliances in respect of any previous visa held by the person.
(2) Section 115 (application of Subdivision C) applies in relation to section 133A in the same way that it applies in relation to Subdivision C.
(3) To avoid doubt, subsections 133A(1) and (3) apply: