LML6006 – Migration Law Case Analysis on Visa Cancellation and Review Rights

Scenario 1 – Samuel Walker from Columbia

As per the given scenario, it is important to note when the visa can be cancelled. A visa held by a non-citizen may be cancelled under subsection 116(1), (1AA), (1AB) or (1AC), while the non-citizen is in the migration zone.[1] For the student visa application, the applicant has to satisfy the genuine entry requirement. The applicant is a genuine applicant for entry and stay as a student, having regard to applicant circumstances, applicant immigration history.[2] Also the applicant intentions must be taken into consideration for which he is applying the visa for, the applicant stated intention to comply with any condition.[3]

Reviewable Decision:

As per the section s12 of the ART,  (1)  A decision is a reviewable decision if an Act or a legislative instrument provides for an application to be made to the Tribunal for review of the decision.[4] A decision to refuse to grant a non-citizen a visa is a reviewable migration decision if the visa could be granted while the non-citizen is in the migration zone and the non-citizen made the application for the visa in the migration zone and the decision was not made when the non-citizen is in the migration clearance.[5]

To be able to apply for the review, any person whose interests are affected by a reviewable decision may apply to the Tribunal review for the decision.[6] Time limits for applying for a review would depend on if the applicant is in the immigration detention or not. In the case of Samuel who is not in immigration detention, he can apply for ART review, within 28 days after the day the applicant is notified of the decision. [7]

Application to Samuel as of October 5, 2025.

As Samuel is onshore and his application for student visa was refused for not meeting the GTE, he is likely to be on Bridging Visa C that would have been granted in association of substantive application.[8] The line of action for Samuel would be to apply for ART, at the earliest and gather as many documents and evidence that can be provided to ART to have a decision reviewed in his favor.

Case Scenario 2 Selena Tiago

In this case, Selena Tiago, got her student visa cancelled on grounds of providing fake/bogus documents as her ielts document is fake. Selena is in Argentina at present, and was about to travel back to Australia in 2 days. A Minister may cancel a visa if he or she is satisfied that incorrect information was given, by or on behalf of the person who holds the current visa to an officer, or an authorise system.[9]

A visa is likely to be cancelled if the information provided is incorrect.[10] If the Minister believe that the visa holder has immigration cleared but do not comply with the sections of 101, 102, 103, 104 and 105, the Minister may give the holder a written notice that would include (a) giving particulars of the possible non-compliance.[11] Section 103 Bogus documents not to be given etc. A non-citizen must not give, present, produce or provide to an officer, an authorised system, the Minister or the ART performing a function or purpose under this Act, a bogus document or cause such a document to be so given, presented, produced or provided.[12]

Reviewable: A decision to cancel a visa held by a non-citizen who is in the Migration zone at the time of the cancellation is a reviewable migration decision.[13] If the Minister cancel a visa under section 109, the Minister must give the former holder of the visa a written notice that sets out the decision, the grounds for cancelling the visa, if the decision can be reviewed and who can review the decision.[14] In the case of Selena, she is offshore, hence the decision to cancel her visa is not reviewable under the migration act as her visa is likely to be cancelled on grounds of fake document as stated in section 103. In case if her visa was cancelled on grounds of section 116, than the minister can cancel her visa while the person is outside of Australia.[15] In this scenario the Minister has to give the former holder a written notice.[16]

Time Limit: Since the decision is not reviewable under the migration act with ART, the time limit does not apply. Though Selena cannot apply for the Merits review with ART, however she would have the option to apply for the Judicial review, however but is limited to whether the decision suffered from a jurisdictional error—such as breach of procedural fairness, misapplication of law, or acting beyond legal powers.

Application to Selena: As the visa has been cancelled and Selena is offshore, her student visa is immediately void meaning she cannot enter Australia as she does not have any substantive visa. She can apply for Judicial review, however having any favourable decision from Judicial review is very unlikely as the reason for her visa cancelation is because of bogus documents. She can apply for another student visa after appearing for IELTS, and hoping she is not facing a 3-year potential bas under section 48 for providing bogus documents.

Case Scenario 3 Romano

Romano also received a notification that his visa is cancelled on the basis that department believe that he also provided bogus document. If the Minister believe that the visa holder do not comply with the section of 101, 102, 103, 104, and 105 after immigration clearance.[17] The minister may give a written notice that would have the possible non-compliance particulars. Romano is believed that he also used bogus documents to get the visa, so any non-citizen should not present, produce or provide to an officer, an authorised system a bogus document.[18] So yes, his visa can be cancelled under section 109, if the information is incorrect.[19]

The decision of having a visa cancelled, is a reviewable decision by a non-citizen who is in the migration zone at the time of the cancellation.[20] So the decision is Reviewable by ART, as he is in the migration zone (arrived two days ago, post-immigration clearance). None of the s338(3) exceptions apply (delegate decision, not Minister-personal; not character grounds). The time limit to apply for the ART would be for 28 days, as the applicant is in the migration zone and not in detention.[21]

In the case of Romano, he received a notice of cancellation for his student visa based on the fact that department has doubt that he also provided bogus document like his sister. Romano is now an unlawful non-citizen, and he is likely to be on bridging Visa E.[22] Romano can apply for Merits review with ART and provide evidence that he did not provide any bogus documents, instead the department has made a mistake.

Bibliography

1. Migration Regulations 1994 (Cth)
2. Migration Act 1958 (Cth)
3. Administrative Review Tribunal 2024

[1] Migration Act 1958 (Cth) s117(1)(d)

[2] Migration Act 1958 (Cth) sch 2 500.212(a)(i)(ii)

[3] Migration Act 1958 (Cth) Sch 2 500.212(b)(i)(ii)

[4] Administrative Review Tribunal Act 2024 s12

[5] Migration Act 1958 (Cth) s338(a)(b)(c)(i)

[6] Administrative Review Tribunal Act s17(1)

[7] Migration Act 1958 (Cth) s347(3)(a)(b)

[8] Migration Act 1958 (Cth) Sch 2 030.212(5)(a)(aa)(b)(c)

[9] Migration Act 1958 (Cth) s116(1AB)(a)(i)(ii)

[10] Migration Act 1958 (Cth) s109(1)(a)(b)(c)

[11] Migration Act 1958 (Cth) s107(1)(a)

[12] Migration Act 1958 (Cth) s103

[13] Migration Act 1958 (Cth) s338(3)

[14] Migration Act 1958 (Cth) s109(3)(a)(b)(d)(i)(ii)(iii)(iv)

[15] Migration Act 1958 (Cth) s128(a)(i)(ii)

[16] Migration Act 1958 (Cth) s129(1)(a)(b)(c)

[17] Migration Act 1958 (Cth) s107(1)(a)

[18] Migration Act 1958 (Cth) s103

[19] Migration Act 1958 (Cth) s109(1)

[20] Migration Act 1958 (Cth) s338(3)

[21] Migration Act 1958 (Cth) s347(3)(b)

[22] Migration Act 1958 (Cth) Sch 2 050.211(1)(a)