78304 · Migration Law: Compliance And Cancellation
The Visa Cancellation Decision Tree
Module 3 is the core of the subject, and this chapter builds the master frame for it. s 118 sets the architecture: the cancellation powers do not limit one another, but you cannot cancel under one power on a ground belonging to another. For every power you run the course's CLOWN checklist — Category, Location, Options (discretionary or mandatory), Who (delegate or Minister-personal), Notice (NOICC before or NOC after) — because those five questions decide the answer. Procedural fairness is supplied by exhaustive statements (s 97A for s 109, s 118A for s 116, s 127A for s 128): comply and natural justice is afforded (WZARH). The chapter then works through the general (non-character) powers: s 109 (incorrect information, built on the ss 101–105 duties and the s 105 must-notify duty), s 116 (the workhorse prescribed-grounds power — (1)(a)/(b)/(e)/(f); Wang; Djokovic on (1)(e)), s 128 (offshore, no notice), the s 133A/133C Minister “veto” powers, and the consequential cancellation of family members under s 140. Character cancellation (s 501) is the next chapter.
What this chapter covers
- 01s 118: the powers do not limit each other; no cross-ground cancellation
- 02CLOWN: Category / Location / Options / Who / Notice - run it for every power
- 03Procedural fairness by exhaustive statement: s 97A (s 109), s 118A (s 116), s 127A (s 128); WZARH
- 04s 109: incorrect info, built on ss 101-105 + the s 105 must-notify duty; s 107 NOICC; reg 2.41
- 05s 116: the prescribed-grounds workhorse - (1)(a)/(b)/(e)/(f); Wang; Djokovic on (1)(e)
- 06s 128: offshore cancellation without prior notice -> NOC + revocation route
- 07s 133A/133C Minister veto powers; s 134/134B/137J; s 140 consequential cancellation
Worked example: picking the right cancellation power with CLOWN
- +1Issue. Which cancellation power(s) fit these grounds, and what notice and review follow?
- +1s 118 first. More than one power may be available, but each ground must be matched to its own power — do not cancel under one power on a ground that belongs to another.
- +1Non-disclosure -> s 109. Failing to disclose a prior refusal is incorrect information: s 109, built on the ss 101–105 duties (the s 105 duty to notify survives the grant). Process: s 107 NOICC -> response -> s 109(1A) discretion on the reg 2.41 factors.
- +1Condition breach -> s 116. The condition breach is a prescribed ground under s 116(1)(b); natural justice is given by the s 118A exhaustive statement.
- +1CLOWN. Category: permanent visa (watch s 140 flow-on to family). Location: onshore -> notice powers, not s 128. Options: both s 109 and s 116 are discretionary. Who: a delegate. Notice: NOICC before, for each.
- +1Review. A delegate's discretionary cancellation with prior notice is merits-reviewable at the ART.
- +1Conclude. s 109 fits the non-disclosure and s 116(1)(b) the condition breach; each carries a NOICC; and because a delegate decided with prior notice, the client can seek ART merits review — while s 140 may flow on to dependants.
Key terms
- s 118 (architecture)
- The cancellation powers do not limit one another, so more than one may be available on the same facts. But you cannot cancel under one power on a ground that belongs to another — each ground must be matched to its proper power.
- CLOWN
- The course's checklist run for every cancellation power: Category (visa class), Location (onshore or offshore), Options (discretionary or mandatory), Who (delegate, Minister, or Minister personally) and Notice (NOICC before or NOC after). These five questions settle the consequences and the review path.
- s 109
- The power to cancel for incorrect information or a bogus document, built on the holder's duties to give correct information (ss 101-105), including the s 105 duty to notify the department of an incorrect answer, which survives the grant. The process is a s 107 NOICC, then the s 109(1A) discretion on the reg 2.41 factors.
- s 116 (the workhorse)
- The prescribed-grounds discretionary power: among others, (1)(a) no longer satisfied of a criterion, (1)(b) breach of a condition, (1)(e) risk to health, safety or good order, and (1)(f) the visa should not have been granted. Natural justice is supplied by the s 118A exhaustive statement; Wang and Djokovic are key authorities.
- Exhaustive statement of NJ
- Provisions (s 97A for s 109, s 118A for s 116, s 127A for s 128) that exhaustively state the natural-justice hearing rule for that power. Complying with the statement means natural justice is taken to have been afforded (WZARH).
The Visa Cancellation Decision Tree FAQ
How do I choose the right cancellation power?
Match the ground to the power: incorrect information points to s 109 (built on the ss 101-105 duties), a prescribed ground such as a condition breach or risk points to s 116, an offshore holder with no notice points to s 128, and character points to s 501. By s 118 the powers do not limit one another, but you must not cancel under one power on a ground belonging to another. Then run CLOWN to fix the notice, the decision-maker and the review.
What is CLOWN and why use it?
CLOWN is the checklist run for every cancellation power: Category, Location, Options (discretionary or mandatory), Who (delegate vs Minister-personal) and Notice (NOICC before vs NOC after). It is useful because the answers determine the consequences — especially whether merits review is available, since a Minister-personal or mandatory decision generally has none.
How is procedural fairness handled for the general powers?
By exhaustive statements: s 97A for s 109, s 118A for s 116, and s 127A for s 128. Complying with the relevant statement means natural justice is taken to have been afforded (WZARH). Where there is prior notice the holder receives a NOICC; where there is none (for example offshore under s 128), a notice of cancellation follows with a revocation route.
What is the s 133A/133C 'veto' power?
These let the Minister personally set aside an ART decision not to cancel and cancel instead on s 109 (133A) or s 116 (133C) grounds plus the public interest. The subsection-(3) versions exclude natural justice and are not merits-reviewable — Djokovic used s 133C(3) with s 116(1)(e)(i), leaving only judicial review for jurisdictional error or unreasonableness.
Exam move
Make CLOWN automatic: for any cancellation problem, run Category, Location, Options, Who and Notice to fix the power, the notice and the review path, and start from s 118 (the powers do not limit one another, but no cross-ground cancellation). Drill the which-power decision — s 109 for incorrect information (and its ss 101-105 foundation), s 116 for prescribed grounds (the workhorse, with Wang and Djokovic), s 128 offshore with no notice — and keep character facts on an s 109/116 file from sliding into an s 501 answer. Tie procedural fairness to the right exhaustive statement (s 97A/118A/127A; WZARH), and always finish on consequences: who decided and what notice was given determine whether merits review at the ART is open, and whether s 140 flows on to family members.
