Migration Act 1958

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:

decided that the ground did not exist; or

decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground);

the Minister considers that the ground exists; and

the visa holder does not satisfy the Minister that the ground does not exist; and

the Minister is satisfied that it would be in the public interest to cancel the visa.

The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).

The procedures set out in Subdivisions E and F do not apply to a decision under subsection (1).

The Minister may cancel a visa held by a person if:

the Minister is satisfied that a ground for cancelling the visa under section 116 exists; and

the Minister is satisfied that it would be in the public interest to cancel the visa.

The Minister’s power to cancel a visa under this subsection is subject to section 117 (see subsection (9) of this section).

The rules of natural justice, and the procedures set out in Subdivisions E and F, do not apply to a decision under subsection (3).

The Minister may cancel a visa under subsection (3) whether or not:

the visa holder was given a notification under section 119 in relation to the ground for cancelling the visa; or

the visa holder responded to any such notification; or

the ART, former Administrative Appeals Tribunal, former Migration Review Tribunal or former Refugee Review Tribunal or a delegate of the Minister:

decided that the ground did not exist; or

decided not to exercise the power in section 116 to cancel the visa (despite the existence of the ground); or

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.

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.

The power in subsection (1) or (3) may only be exercised by the Minister personally.

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.

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.

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.