LML6005: Migration Act 1958 Visa Cancellation Powers – Legal Analysis of the Kanye West Case

Based on the given scenario, in the news article Kanye West’s visa was cancelled by the Department of Home Affairs officials while he was outside Australia. The reason for cancellation of his visa was after the release of his song “Heil Hitler”, which was considered as promoting Nazism and bigotry. Though the visa was only a lower-level visa, like visitor visa and not for any performance but it still got cancelled by the officials.

As per the Migration Act 1958 a Minister may cancel a visa if he or she is satisfied that the presence of its holder in Australia is or may be or would or might be a risk to the health, safety or good order of the Australian Community or a segment of the Australian community.[1] It could also be cancelled on the grounds of the fact that the presence of the visa holder in Australia would be a risk to the health and safety of individual or individuals.[2]

Cancelling of a visa on the above grounds are discretionary and broad as well, as it allows cancelling of a visa on reasonable assessment and the presence of the visa holder potential risk. This potential risk can be linked with the Kanye song, (Heil Hitler) as it can be viewed posing a risk to the good order of the Australian community.

The visa holder can be in or outside of the country when his visa can be cancelled. If the Minister is satisfied that there is a ground for cancelling a visa under section 116 and if it is appropriate to cancel the visa the Minister may without notice to the holder of the visa, cancel the visa.[3] Once the delegate is satisfied that there is a ground for cancellation under s116, they must also be satisfied that it is appropriate to cancel the visa without notice to the visa holder.[4]

In the case of Kanye, s116 cancellation can be effected under s128 of the Act, which allows the Minister/delegate to cancel the visa without prior notice if the Holder is outside of Australia.[5] Also as per the Migration Policy PAM It is in the interest of protecting the Australian Community but without limiting an officer’s discretion, delegates should consider cancellation in all cases where it appears that the holder’s presence in Australia may or might pose a risk to the safety of The Australian Community, A segment of Australian Community or an Individual.[6] The Delegate can cancel the Visa with contacting the Assistant Secretary, Character Assessment and Cancellations Branch when considering cancellation for ‘good order’ under s116(1)(e).[7]

Under the s128, the delegate has the Discretionary power to cancel. Section 128 provides the delegates with a power to cancel a visa if satisfied that one of the grounds exist that are set out in s116. It is appropriate to cancel the visa without notice and the visa holder is outside of Australia.[8]

On the other hand, another alternative power that could be used in cancelling the visa would be of s501that is refusal or cancellation of visa on Character grounds. The Minister may cancel a visa that has been granted to a person if: the Minister reasonably suspects that the person does not pass the Character test.[9] The Character test is usually linked with the criminal activities or substantial criminal record or if someone is convicted of an offence.[10] Which in the case of Kanye isn’t the case, however he did made a lot of offensive comments that became the main reason for his visa cancellation. Now this can be linked with the section s501 that talks about if the person is allowed to enter or remain in Australia there is a risk that the person would vilify the segment of the Australian community.[11] As briefed in Policy PAM3, cases that may potentially enliven may involve conduct such as history of public rallies, extremist views, or being likely to provoke an incident in Australia.[12] Though this can be linked with the comment Kanye made in his song, however such comments might not be the bases for his visa cancellation. Promoting Nazism via the song could be seen as vilifying the Jewish community or inciting broader discord which can be seen as danger to the Australian community.[13] This power can be applied to any visa, even including the lower-level visa like the visitor visa and can be used for offshore holders.

Does Natural Justice Apply?

Natural Justice that is procedural fairness generally applies to a decision under section 501(2) by the department official. As the Minister may cancel a visa if the Minister reasonably suspects that the person does not pass the character test[14]. And the person has given a chance but is not able to satisfy the Minister.[15] However if the Minister personally exercise his power under section 501(3), that means the Minister can cancel the visa without providing any notice, hence the Natural Justice does not apply.[16]

If the visa is cancelled under the section 128, under which the visa can be cancelled without giving the holder the opportunity to respond upfront. Under s128 the Minister can cancel the visa without any notice to the holder of the visa.[17] Hence Natural Justice does not apply based on this scenario. However, if a Minister cancel a visa under s128, he or she must give a former holder of the visa a written notice that should include Stating a ground on which the visa was cancelled and giving particular of that ground.[18] In case if the Minster fail to give notification of a decision it does not affect the validity of the decision.[19]

Minister personal power of intervention that could have been used by (Tony Burke), are under s501(3) where the Minister may cancel a visa of a person if the Minister reasonably believes that the cancellation of the visa is in the national interest.[20] Based on the given scenario, s116 and s128 is the most appropriate power that the Minister would have used to cancel Kanye Visa, that is focused on preventing a specific risk from the song, without mention of the prior notice of a full character assessment.

Bibliography

Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Department of Home Affairs (Cth), Procedures Advice Manual 3: Referral of Potential Character Cases

[1] Migration Act 1958 (Cth) s116(1)(e)(i)

[2] Migration Act 1958 (Cth) s116(1)(e)(ii)

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

[4] Department of Home Affairs (Cth), Procedures Advice Manual 3: Grounds for s128 Cancellation

[5] Migration Act 1958 (Cth) s128(b)

[6] Department of Home Affairs (Cth), Procedures Advice Manual 3: Risk to the Safety

[7] Department of Home Affairs (Cth), Procedures Advice Manual 3: Risk to Good Order

[8] Department of Home Affairs (Cth), Procedures Advice Manual 3: s128 Deciding whether to cancel

[9] Migration Act 1958 (Cth) s501(2)(a)

[10] Migration Act 1958 (Cth)s501(6)(1)(a)(aa)

[11] Migration Act 1958 (Cth)s501(6)(d)(iii)

[12] Department of Home Affairs (Cth), Procedures Advice Manual 3: Referral of Potential Character Cases