The issue in this instant situation is the power of cancellation that the Migration Act 1958 provides to the Department of Home Affairs, which they needs to rely upon in considering the cancellation relating to the visa of Linda and the reasons behind relying upon that power. The powers relating to the cancellation of visa has been vested upon the Department of Home Affairs by virtue of the section 109 of the Act, if the Department is satisfied that the application which resulted in the grant of the visa in question contained false information based on the evidence that has been made available to them. In the instant situation, it has been informed to the migration agent that Linda holds a class 186 Employer Nomination visa and since the grant of the same she has been working with the same employer. In addition, she informed the agent regarding the confession that she has made to her friend in relation to the forged IELTS test she has submitted with her visa application and which her friend has communicated to the Department of Home Affairs. This confers the Department of Home affairs to rely on the powers that has been assigned to them by virtue of section 109 of the Act that enables them to cancel Linda’s visa that has been granted to her based upon incorrect information regarding the false IELTS test. The Department would rely upon section 109 of the Migration Act, 1958 while considering the cancellation of Linda’s visa as the situation comes under the purview of this section.

 

The subsequent issue that has cropped up in this situation is the time period within which the response to the Notice of Intention to Consider Cancellation that Linda has received in relation to the cancellation of her visa needs to be filed with the Department of Home Affairs, and any extension of such time period that is available to Linda in filing the response. The Department may serve a Notice of Intention to Consider Cancellation upon Linda in case they are satisfied about the presence of adequate reason for considering the cancellation of the visa. Such a notice would extend a chance to Linda in availing a chance to present her side of the situation and any explanation that she might have that may prevent such a cancellation of her visa. Again, the response that Linda needs to file in order to present an explanation to request a prevention of the cancellation is to be filed within a specified time limit. In case the notice was sent to Linda using the post, the response needs to be filed within seven working days.

 

 

However, in case of the notice sent via email or fax, the same needs to be responded to within twenty-eight form the date of receiving the notice. This would provide Linda with chance to file a response within twenty-eight days form the date of receiving the notice, in which she needs to furnish reasons to prevent the cancellation of her visa. However, in case Linda does not have the scope to file the response within that specified time, she has the option of availing an extension of the time for filing the response. In that case, Linda needs to request an extension from the National Character Consideration Centre (NCCC).

 

A Notice of Intention to Consider Cancellation may be served upon the person having his visa under question by the Department of Home Affairs. Again, the notice needs to be served upon the person in case the Department has a valid ground and adequate evidence that justifies their disputing validity of the person’s visa. The Department needs to base their decision in this regard upon genuine evidence and valid grounds. That notice needs to be served upon the person whose validity of visa has been disputed with a view to present her with a chance of being heard by way of a response. The notice that has been served upon the person whose visa is in question needs to be provided in a written form. The notice must be written in plain English. The notice, thus served is required to contain the reason for which the cancellation of the visa has been considered. The notice must also contain the basic particulars regarding the visa in question and any other detailed that needs to be included. In the instant situation, Linda needs to be provided with a notice by the department and the notice needs to contain all the particulars that has been prescribed by the migration law. the notice must contain the reason for such a cancellation.

Reference

Jacobs, Keith. Experience and representation: contemporary perspectives on migration in Australia. Routledge, 2016.

The Migration Act, 1958