that is or was granted on or after 17 February 1992.
designated investment has the meaning given by the regulations.
eligible business means a business that the Minister reasonably believes is resulting or will result in one or more of the following:
(a) the development of business links with the international market;
(b) the creation or maintenance of employment in Australia;
(c) the export of Australian goods or services;
(d) the production of goods or the provision of services that would otherwise be imported into Australia;
(e) the introduction of new or improved technology to Australia;
(f) an increase in commercial activity and competitiveness within sectors of the Australian economy.
established business in Australia visa means a business visa a criterion for whose grant:
(a) relates to the applicant having an established business in Australia; or
(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
family member’s visa means a business visa held by a person:
(a) who is or was a member of the family unit of another person who held a business visa; and
(b) who would not have held the business visa if he or she had never been a member of the family unit of the other person.
investment‑linked visa means a business visa a criterion for whose grant:
(a) relates to the holding of a designated investment; or
(b) is that the applicant is a member of the family unit of the holder of a visa a criterion for whose grant is as mentioned in paragraph (a).
ownership interest, in relation to a business, means an interest in the business as:
(a) a shareholder in a company that carries on the business; or
(b) a partner in a partnership that carries on the business; or
(c) the sole proprietor of the business;
including such an interest held indirectly through one or more interposed companies, partnerships or trusts.
relevant designated investment, in relation to an investment‑linked visa (other than a family member’s visa), means the designated investment that was, in deciding to grant the visa, regarded as satisfying the criterion referred to in paragraph (a) of the definition of investment‑linked visa.
return visa has the same meaning as in the regulations.
135 Representations concerning cancellation of business visa
(1) Before cancelling a visa under subsection 134(1), (3A) or (4), the Minister must give its holder a written notice:
(a) stating that the Minister proposes to cancel the visa; and
(b) inviting its holder to make representations to the Minister concerning the proposed cancellation within:
(i) if the notice is given in Australia—28 days after the notice is given; or
(ii) if the notice is given outside Australia—70 days after the notice is given.
(2) The holder may make such representations to the Minister within the time specified in the notice.
(3) The Minister must give due consideration to any representations.
(4) If:
(a) the time specified in the notice ends after the end of the period referred to in subsection 134(9); and
(b) at the end of the period of 90 days commencing at the time specified in the notice, the Minister has not made a decision on whether to proceed with the cancellation;
the Minister is not to proceed with the cancellation.
(5) If the Minister decides not to proceed with the cancellation, the Minister must give its holder written notice to that effect.
(6) A notice under subsection (1) or (5) must be given in the prescribed way.
136 Review of decisions
An application may be made to the ART for review of a decision of the Minister under subsection 134(1), (3A) or (4).
137 Provision of information—holders of business visas
(1) The Secretary or Australian Border Force Commissioner may by written notice require the holder of a business visa to give the Secretary or Australian Border Force Commissioner such information as is specified in the notice.
(2) The Secretary or Australian Border Force Commissioner may not require information under subsection (1) unless the information is to be used by the Secretary, the Australian Border Force Commissioner or the Minister for the purpose of the administration of this Act or of regulations made under this Act.
(3) A notice under subsection (1) is only valid in the period of 3 years commencing:
(a) if the 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 the holder was not in Australia when he or she was first granted a business visa—on the day on which the holder first entered Australia after that first visa was granted.
(4) Without limiting the generality of the information that may be required under subsection (1), the Secretary or Australian Border Force Commissioner may require the holder to advise the Secretary or Australian Border Force Commissioner in writing of any change in the address of the holder during a period specified in the notice.
(5) A notice under subsection (1) must state that the information must be provided within a period of 28 days commencing on a day specified in the notice.
(6) The day specified in the notice may be:
(a) the day on which the notice is issued; or
(b) a later particular day; or
(c) the day on which an event specified in the notice occurs.
(7) A person who fails to comply with a notice under subsection (1) commits an offence at the end of every successive 28 day period that is contained in the period commencing on the day specified in the notice and ending when the person complies with the notice.
Penalty: 50 penalty units.
(7A) Subsection (7) does not apply if the person has a reasonable excuse.
Note: A defendant bears an evidential burden in relation to the matter in subsection (7A) (see subsection 13.3(3) of the Criminal Code).
(7B) An offence against subsection (7) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(8) Subsection 4K(2) of the Crimes Act 1914 does not apply to an offence under subsection (7).
(10) In this section:
business visa has the same meaning as in section 134.
Subdivision GB—Automatic cancellation of student visas
137J Non‑complying students may have their visas automatically cancelled
(1) This section applies if a notice is sent to a non‑citizen under section 20 of the Education Services for Overseas Students Act 2000 in relation to a visa held by the non‑citizen (even if the non‑citizen never receives the notice).
Note 1: Under that section, a registered education provider must send a notice to a non‑citizen who breaches a condition of the non‑citizen’s visa that is prescribed by regulations made for the purposes of that Act. The notice must give particulars of the breach and must require the non‑citizen to attend before an officer for the purpose of making any submissions about the breach and the circumstances that led to the breach.
Note 2: Under subsection 20(4A) of that Act, a registered provider must not send a notice on or after the day that subsection commences.
(2) The non‑citizen’s visa is cancelled by force of this section at the end of the 28th day after the day that the notice specifies as the date of the notice unless, before the end of that 28th day:
(a) the non‑citizen complies with the notice; or
(b) the non‑citizen, while attending in person at an office of Immigration (within the meaning of the regulations) that is either:
(i) in Australia; or
(ii) approved for the purposes of this paragraph by the Minister by notice in the Gazette;
makes himself or herself available to an officer for the stated purpose of making any submissions about the breach and the circumstances that led to the breach.
137K Applying for revocation of cancellation
(1) A non‑citizen whose visa has been cancelled under section 137J may apply in writing to the Minister for revocation of the cancellation.
(2) A non‑citizen who is in the migration zone cannot apply for revocation at a time when, because of section 82, the visa would no longer have been in effect anyway had the visa not been cancelled under section 137J.
(3) In addition to the restriction in subsection (2), a non‑citizen who is in the migration zone and who has been detained under section 189 cannot apply for revocation later than:
(a) 2 working days after the day on which section 194 was complied with in relation to his or her detention; or
(b) if he or she informs an officer in writing within those 2 days of his or her intention to so apply—within the next 5 working days after those 2 working days.
(4) A non‑citizen who is outside the migration zone cannot apply for revocation later than 28 days after the day of the cancellation.
(5) In any case, a non‑citizen cannot apply for revocation if he or she has previously made such an application in respect of the same cancellation.
137L Dealing with the application
(1) On an application under section 137K, the Minister may revoke the cancellation if, and only if, the applicant satisfies the Minister:
(a) that the non‑citizen did not in fact breach the relevant visa condition or conditions; or
(b) that the breach was due to exceptional circumstances beyond the non‑citizen’s control; or
(c) of any other matter prescribed in the regulations.
(2) However, the Minister must not revoke the cancellation on the ground that the non‑citizen was unaware of the notice or of the effect of section 137J.
(3) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.
137M Notification of decision
(1) When the Minister decides whether to revoke a cancellation under section 137L, he or she must give the non‑citizen written notice of the decision.
(2) Notice of a decision not to revoke a cancellation must:
(a) specify the grounds for the decision; and
(b) state:
(i) that if the non‑citizen was in the migration zone when the decision was made, the decision is reviewable by the ART; and
(ii) the time in which the application for review may be made; and
(iii) who may apply for the review; and
(iv) where the application for review may be made.
(3) Failure to notify of a decision whether to revoke a cancellation 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 notices 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 a decision to not to revoke a cancellation under section 137L.
137N Minister may revoke cancellation on his or her own initiative
(1) The Minister may, on his or her own initiative, revoke the cancellation under section 137J of a particular non‑citizen’s visa, if the Minister thinks that it is in the public interest to do so.
(2) The Minister must give the relevant non‑citizen written notice of a decision under subsection (1) to revoke a cancellation.
(3) The power in subsection (1) may only be exercised by the Minister personally.
(4) The Minister does not have a duty to consider whether to exercise the power in subsection (1), whether or not the non‑citizen or anyone else requests him or her to do so, or in any other circumstances.
(5) A cancellation is revoked under this section by the Minister causing a record of the revocation to be made.
137P Effect of revocation
(1) If the cancellation of a visa is revoked under section 137L or 137N, the visa is taken never to have been cancelled under section 137J.
(2) If the revocation is under section 137L and the decision is made wholly or partly on the ground that paragraph 137L(1)(a) or (b) applies to the breach that was alleged in the notice mentioned in section 137J, then that breach cannot be a ground for cancelling the visa under section 116.
(3) However, a revocation under section 137L or 137N does not otherwise limit or affect any other power to cancel the visa under this Act.
(4) In particular, a different or later breach of a condition of the visa can be a ground for cancelling the visa under section 116.
(5) Despite subsection (1), any detention of the non‑citizen that occurred during any part of the period:
(a) beginning when the visa was cancelled under section 137J; and
(b) ending at the time of the revocation of the cancellation;
is lawful and the non‑citizen is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
Subdivision GC—Cancellation of regional sponsored employment visas
137Q Cancellation of regional sponsored employment visas
Employment does not commence
(1) The Minister may cancel a regional sponsored employment visa held by a person if:
(a) the Minister is satisfied that the person has not commenced the employment referred to in the relevant employer nomination within the period prescribed by the regulations; and
(b) the person does not satisfy the Minister that he or she has made a genuine effort to commence that employment within that period.
Employment terminates within 2 years
(2) The Minister may cancel a regional sponsored employment visa held by a person if:
(a) the Minister is satisfied that:
(i) the person commenced the employment referred to in the relevant employer nomination (whether or not within the period prescribed by the regulations); and
(ii) the employment terminated within the period (the required employment period) of 2 years starting on the day the person commenced that employment; and
(b) the person does not satisfy the Minister that he or she has made a genuine effort to be engaged in that employment for the required employment period.
Regional sponsored employment visa
(3) In this section:
regional sponsored employment visa means a visa of a kind that:
(a) is included in a class of visas that has the words “Employer Nomination” in its title; and
(b) is prescribed by the regulations for the purposes of this definition.
137R Representations concerning cancellation etc.
(1) Before cancelling a person’s visa under section 137Q, the Minister must give the person a written notice:
(a) stating that the Minister proposes to cancel the visa; and
(b) inviting the person to make representations to the Minister concerning the proposed cancellation within:
(i) if the notice is given in Australia—28 days after the notice is given; or
(ii) if the notice is given outside Australia—70 days after the notice is given.
(2) The Minister must consider any representations received within that period.
(3) If the Minister decides not to proceed with the cancellation, the Minister must give the person written notice of the decision.
(4) A notice under subsection (1) or (3) must be given in the prescribed way.
137S Notice of cancellation
(1) If the Minister decides to cancel a person’s visa under section 137Q, he or she must give the person written notice of the decision. The notice must:
(a) specify the reasons for the cancellation; and
(c) if the decision to cancel the visa is reviewable by application under Part 5—state the period within which an application for review can be made, who can apply for the review and where the application for review can be made.
(1A) The notice under subsection (1) must be given in the prescribed way.
(2) Failure to give notice of the decision does not affect the validity of the decision.
(3) 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 this section.
(4) Section 268 (requesting reasons for a reviewable decision from decision‑maker) of the ART Act does not apply in relation to a decision to cancel a visa under section 137Q.
137T Cancellation of other visas
(1) If a person’s visa is cancelled under section 137Q, a visa held by another person because of being a member of the family unit of the person is also cancelled.
(2) The cancellation under subsection (1) of this section is set aside if the cancellation of the person’s visa under section 137Q is set aside under the ART Act.
Subdivision H—General provisions on cancellation
138 Cancellation and revocation of cancellation of visas—how and when
(1) The following decisions are taken to be made by the Minister causing a record to be made of the decision:
(a) a decision to cancel a visa, or not to cancel a visa;
(b) a decision to revoke the cancellation of a visa, or not to revoke the cancellation of a visa.
(2) The record must state the day and time of its making.
(3) The decision is taken to have been made on the day and at the time the record is made.
(4) The Minister has no power to vary or revoke the decision after the day and time the record is made.
(5) Failure to comply with subsection (2) does not affect the validity of the decision or the operation of subsection (4).
139 Visas held by 2 or more
If a visa is held by 2 or more non‑citizens:
(a) Subdivisions C, D, E, F and FA and this Subdivision apply as if each of them were the holder of the visa; and
(b) to avoid doubt, if the visa is cancelled because of one non‑citizen being its holder, it is cancelled so that all those non‑citizens cease to hold the visa.
140 Cancellation of visa results in other cancellation
(1) If a person’s visa is cancelled under section 109 (incorrect information), 116 (general power to cancel), 128 (when holder outside Australia), 133A (Minister’s personal powers to cancel visas on section 109 grounds), 133C (Minister’s personal powers to cancel visas on section 116 grounds) or 137J (student visas), a visa held by another person because of being a member of the family unit of the person is also cancelled.