133A Minister's Personal Powers to Cancel Visas

This provision grants the Minister two distinct personal powers to cancel visas based on Section 109 grounds (non-compliance with sections 101-105):

Two Pathways for Ministerial Cancellation

Pathway 1 - With Natural Justice (Subsection 1)

The Minister can overturn a previous decision by the ART, tribunals, or a delegate that either found no cancellation ground existed or decided not to cancel the visa. Requirements include:

• Minister considers the ground exists
• Visa holder cannot satisfy the Minister the ground doesn't exist
• Minister believes cancellation is in the public interest

Trigger

Applies if a section 107 notice (show-cause for potential s 109 cancellation) was issued, but a subsequent decision by the Administrative Review Tribunal (ART), former tribunals (Administrative Appeals Tribunal, Migration Review Tribunal, or Refugee Review Tribunal), or a departmental delegate:

• Found no s 109 ground existed (s 133A(1)(a)); or
• Declined to cancel despite the ground (s 133A(1)(b)).

Minister's Power

The Minister may personally set aside that decision and cancel the visa if:

• The Minister is satisfied the s 109 ground does exist (s 133A(1)(c));
• The visa holder fails to satisfy the Minister otherwise (s 133A(1)(d)); and
• Cancellation is in the public interest (s 133A(1)(e)).

Procedural Note

Natural justice applies (e.g., opportunity to respond), but the standard pre-cancellation procedures in Subdivision C (ss 119–122, including formal notices) do not apply (s 133A(2)).

Pathway 2 - Without Natural Justice (Subsection 3)

The Minister can cancel a visa for immigration-cleared persons without following natural justice procedures or giving prior notice. The Minister only needs to be satisfied that:

• A Section 109 ground exists
• Cancellation is in the public interest

Trigger:

For any visa holder who has been immigration cleared (entered Australia, regardless of the visa in question).

Minister's Power:

The Minister may personally cancel the visa if:

• Satisfied a s 109 ground exists (s 133A(3)(a)); and
• Satisfied it is in the public interest to cancel (s 133A(3)(b)).

Scope:

This overrides or ignores:

• Any prior s 107 notice (or lack thereof);
• Any response to such a notice;
• Prior decisions by ART, former tribunals, or delegates finding no ground or declining cancellation (s 133A(5)(c)).

Key Characteristics

• Personal Exercise Only: The Minister must exercise these powers personally—they cannot be delegated
• No Duty to Consider: The Minister has no obligation to consider exercising these powers, even if requested
• Overriding Authority: The Minister can set aside tribunal or delegate decisions and cancel visas regardless of previous outcomes
• No Standard Procedures: Normal procedural requirements under Subdivision C don't apply

This represents significant discretionary power allowing ministerial intervention in visa cancellations based on public interest considerations.