(a) whether or not the Minister became aware of the ground for cancelling the visa because of information given by the visa holder; and
(b) whether the non‑compliance because of which the ground is considered to exist was deliberate or inadvertent.
(4) Steps taken for the purposes of the Minister exercising the power in subsection 133A(1) or (3) in relation to an instance of possible non‑compliance by a person do not prevent:
(a) a notice under section 107 being given to that person because of another instance of possible non‑compliance; or
(b) the exercise of the power in subsection 133A(1) or (3) in relation to the person because of another instance of possible non‑compliance.
(5) The non‑cancellation of a visa under section 133A despite an instance of non‑compliance does not prevent the cancellation, or steps for the cancellation, of the visa because of another instance of non‑compliance.
133C Minister’s personal powers to cancel visas on section 116 grounds
Action by Minister—natural justice applies
(1) If a notification was given under section 119 to the holder of a visa in relation to a ground for cancelling the visa under section 116, 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 section 116 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 Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).
(2) The procedures set out in Subdivisions E and F do 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 if:
(a) the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and
(b) the Minister is satisfied that it would be in the public interest to cancel the visa.
Note: The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).
(4) The rules of natural justice, and the procedures set out in Subdivisions E and F, 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 notification under section 119 in relation to the ground for cancelling the visa; or
(b) the visa holder responded to any such notification; 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 section 116 to cancel the visa (despite the existence of the ground); or
(d) a delegate of the Minister decided to revoke, under subsection 131(1), a cancellation of the visa in accordance with section 128 in relation to 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) Section 117 applies in relation to the power in subsection (1) or (3) in the same way as it applies to the cancellation of a visa under section 116.
(10) 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.
133D Cancellation under subsection 133A(1) or 133C(1)—method of satisfying Minister of matters
The regulations may provide that, in determining for the purposes of subsection 133A(1) or 133C(1) whether:
(a) a person; or
(b) a person included in a specified class of persons;
satisfies the Minister that a ground for cancelling the person’s visa does not exist, any information or material submitted by or on behalf of the person must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the regulations.
133E Cancellation under subsection 133A(1) or 133C(1)—notice of cancellation
(1) If a decision is made under subsection 133A(1) or 133C(1) to cancel a visa that has been granted to a person, the Minister must give the former holder of the visa a written notice that:
(a) sets out the decision; and
(b) specifies the provision under which the decision was made; and
(c) sets out the reasons (other than non‑disclosable information) for the decision.
(2) The notice is to be given in the prescribed way.
(3) A failure to comply with this section in relation to a decision does not affect the validity of the decision.
133F Cancellation under subsection 133A(3) or 133C(3)—Minister may revoke cancellation in certain circumstances
(1) This section applies if the Minister makes a decision (the original decision) under subsection 133A(3) or 133C(3) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person, in the prescribed way:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the person satisfies the Minister that the ground for cancelling the visa referred to in subsection 133A(3) or 133C(3) (as the case requires) does not exist.
(5) The power in subsection (4) may only be exercised by the Minister personally.
(6) If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).
(7) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
Subdivision FB—Emergency cancellation on security grounds
134A Natural justice
The rules of natural justice do not apply to a decision made under this Subdivision.
134B Emergency cancellation on security grounds
The Minister must cancel a visa held by a person if:
(a) there is an assessment made by ASIO for the purposes of this section; and
(b) the assessment contains advice that ASIO suspects that the person might be, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and
(c) the assessment contains a recommendation that all visas held by the person be cancelled under this section; and
(d) the person is outside Australia.
134C Decision about revocation of emergency cancellation
Application of section
(1) This section applies to a visa that is cancelled under section 134B.
First ground to revoke cancellation
(2) The Minister must revoke the cancellation of the visa as soon as reasonably practicable after the end of the period referred to in subsection (5).
(3) However, the Minister must not revoke the cancellation under subsection (2) if:
(a) there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and
(b) the assessment contains advice that the former holder of the visa is, directly or indirectly, a risk to security (within the meaning of section 4 of the ASIO Act); and
(c) the assessment contains a recommendation that the cancellation not be revoked under subsection (2).
Second ground to revoke cancellation
(4) If:
(a) there is an assessment made by ASIO for the purposes of this section before the end of the period referred to in subsection (5); and
(b) the assessment contains a recommendation that the cancellation of the visa be revoked under this subsection;
then the Minister must revoke the cancellation as soon as reasonably practicable after the assessment is made.
Period
(5) For the purposes of subsections (2), (3) and (4), the period is the period that:
(a) starts at the beginning of the day (the cancellation day) the visa is cancelled; and
(b) ends at the end of the 28th day after the cancellation day.
134D Effect of revocation of cancellation
(1) If the cancellation of a visa is revoked under section 134C, then, without limiting its operation before cancellation, it has effect as if it were granted on the revocation.
(2) However, the Minister may vary:
(a) the time the visa is to be in effect; or
(b) 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.
134E Notice of cancellation
(1) If:
(a) the Minister decides under section 134B to cancel a visa; and
(b) the Minister decides under subsection 134C(3) not to revoke the cancellation;
then the Minister must give the former holder of the visa written notice of the cancellation.
(2) The notice must be given:
(a) if the assessment made by ASIO for the purposes of section 134C contains an advice that it is essential to the security of the nation that a notice is not given to the person under this section—as soon as reasonably practicable after ASIO advises the Minister, in writing, that it is no longer essential to the security of the nation for the notice not to be given; and
(b) otherwise—as soon as reasonably practicable after the Minister decides under subsection 134C(3) not to revoke the cancellation.
(3) The notice must:
(a) state that the visa was cancelled under section 134B; and
(b) be given to the person in the prescribed way.
(4) Failure to give the notice does not affect the validity of either:
(a) the decision under section 134B to cancel the visa; or
(b) the decision under subsection 134C(3) not to revoke the cancellation.
134F Effect of cancellation on other visas
(1) This section applies if:
(a) a visa held by a person (the relevant person) is cancelled under section 134B; and
(b) the Minister decides under subsection 134C(3) not to revoke the cancellation; and
(c) the Minister has given a notice to the relevant person under section 134E about the cancellation.
(2) If another person holds a visa only because the relevant person held a visa, then the Minister may, without notice to the other person, cancel the other person’s visa.
Subdivision G—Cancellation of business visas
134 Cancellation of business visas
(1) Subject to subsection (2) and to section 135, the Minister may cancel a business visa (other than an established business in Australia visa, an investment‑linked visa or a family member’s visa) if the Minister is satisfied that its holder:
(a) has not obtained a substantial ownership interest in an eligible business in Australia; or
(b) is not utilising his or her skills in actively participating at a senior level in the day‑to‑day management of that business; or
(c) does not intend to continue to:
(i) hold a substantial ownership interest in; and
(ii) utilise his or her skills in actively participating at a senior level in the day‑to‑day management of;
an eligible business in Australia.
(2) The Minister must not cancel a business visa under subsection (1) if the Minister is satisfied that its holder:
(a) has made a genuine effort to obtain a substantial ownership interest in an eligible business in Australia; and
(b) has made a genuine effort to utilise his or her skills in actively participating at a senior level in the day‑to‑day management of that business; and
(c) intends to continue to make such genuine efforts.
(3) Without limiting the generality of matters that the Minister may take into account in determining whether a person has made the genuine effort referred to in subsection (2), the Minister may take into account any or all of the following matters:
(a) business proposals that the person has developed;
(b) the existence of partners or joint venturers for the business proposals;
(c) research that the person has undertaken into the conduct of an eligible business in Australia;
(d) the period or periods during which the person has been present in Australia;
(e) the value of assets transferred to Australia by the person for use in obtaining an interest in an eligible business;
(f) the value of ownership interest in eligible businesses in Australia that are, or have been, held by the person;
(g) business activity that is, or has been, undertaken by the person;
(h) whether the person has failed to comply with a notice under section 137;
(i) if the person no longer holds a substantial ownership interest in a particular business or no longer utilises his or her skills in actively participating at a senior level of a day‑to‑day management of a business:
(i) the length of time that the person held the ownership interest or participated in the management (as the case requires); and
(ii) the reasons why the person no longer holds the interest or participates in the management (as the case requires).
(3A) Subject to section 135, the Minister may cancel an investment‑linked visa (other than a family member’s visa) if the Minister is satisfied that the person, or any of the persons, who held the relevant designated investment when the visa was granted has or have ceased, for any reason, to hold that investment within 3 years of that investment being made.
(4) Subject to subsection (5) and to section 135, if:
(a) the Minister cancels a person’s business visa under subsection (1) or (3A); and
(b) a business visa is held by another person who is or was a member of the family unit of the holder of the cancelled visa; and
(c) the other person would not have held that business visa if he or she had never been a member of the family unit of the holder of the cancelled visa;
the Minister must cancel the other person’s business permit or business visa.
(5) The Minister must not cancel the other person’s business visa under subsection (4) if the cancellation of that visa would result in extreme hardship to the person.
(6) The Minister is taken not to have cancelled a person’s business visa under subsection (4) if the ART has set aside the decision of the Minister to cancel the business visa of the relevant person to whom paragraph (4)(a) applied.
(7) If the Minister cancels a business visa under this section, the Minister must give written notice of the cancellation decision to its holder, including:
(a) the Minister’s reason for the cancellation; and
(b) a statement to the effect that the holder may, within 28 days after receiving the notice, apply to the ART for review of the cancellation.
(7A) The notice under subsection (7) must be given in the prescribed way.
(7B) Section 267 (decision‑maker must have regard to rules when giving notice of decision) of the ART Act does not apply in relation to notices given under subsection (7).
(8) A cancellation under this section has effect on and from:
(a) if the person applies to the ART for a review of the decision to cancel the visa—the 28th day after the day on which the ART gives its decision on that review; or
(b) if:
(i) the person’s visa was cancelled under subsection (4); and
(ii) the relevant person to whom paragraph (4)(a) applied has applied to the ART for a review of the decision to cancel that person’s visa;
the 28th day after the day on which the ART gives its decision on that review; or
(c) the 28th day after the day on which the notice of cancellation is given to the holder of the cancelled visa;
whichever is the latest.
(9) The Minister must not cancel a business visa under subsection (1), (3A) or (4) unless a notice under section 135 was given to its holder within the period of 3 years commencing:
(a) if its holder was in Australia when he or she was first granted a business visa—on the day on which that first visa was granted; or
(b) if its holder was not in Australia when he or she was first granted a business visa—on the day on which its holder first entered Australia after that first visa was granted.
(10) In this section:
business visa means:
(a) a visa included in a class of visas, being a class that:
(i) has the words “Business Skills” in its title; and
(ii) is prescribed for the purposes of this paragraph; or
(b) a visa:
(i) to which a prescribed provision of the Migration Reform (Transitional Provisions) Regulations applies; and
(ii) that is of a kind prescribed for the purposes of this paragraph; or
(c) a return visa that is granted to a person who is or was the holder of a business permit or business visa;