Section 128 — Cancellation of visa — entry to Australia
Text of provision
If:
(a) the Minister is satisfied that:
(i) there is a ground for cancelling a visa under section 116; and
(ii) it is appropriate to cancel in accordance with this Subdivision; and
(b) the non-citizen is outside Australia; the Minister may, without notice to the holder of the visa, cancel the visa.
Plain English
Section 128 provides that the Minister may cancel a visa if, at the time the holder is seeking entry to Australia, a ground for cancellation under s 116 exists or a ground under s 133A (character) exists. Unlike the standard cancellation process, no prior notice or opportunity to respond is required where cancellation occurs at the border.
The holder must be given an opportunity to respond at the time of, or immediately after, the cancellation decision.
Practical effect
Border cancellations under s 128 are a distinct pathway from the standard s 116/s 119 process. They are typically used where the Department or ABF discovers information at the border (such as failure to disclose a criminal conviction, or evidence of a breach of a previous visa) that makes cancellation appropriate. Because no prior notice is required, border cancellations can occur with very short notice. Review rights exist before the ART but are subject to tight timeframes.