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Fact Sheet 89 - Information for clients whose Transitional (Permanent) visa was cancelled under s.501(2) of the Migration Act 1958

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Effect of the decision of SALES of 2008 v MIMIA

    On 17 July 2008 the Full Federal Court's decision in Sales v Minister for Immigration and Citizenship (2008) FCAFC 132 (Sales) found that section 501(2) of the Migration Act 1958 does not authorize the cancellation of a visa that is simply 'held' by a person. Section 501(2) only permitted cancellation of a visa that had been 'granted' or deemed by express statutory provision to 'have been granted' to a person.

    The Court ruled that a Transitional (Permanent) visa that is simply 'held' by virtue of the Migration Reform (Transitional Provisions) Regulations of 1994 is not granted, nor deemed to be granted, and therefore cannot be cancelled under section 501(2).

    Legislative amendments which enable Transitional (Permanent) visas to be cancelled under section 501 of the Act were given Royal assent on 15 September 2008 and commenced on 19 September 2008 (Migration Legislation Amendment Act (No. 1) 2008, Schedule 4). These amendments allow the Minister to cancel Transitional (Permanent) visas in the future and also validate previous decisions to cancel Transitional (Permanent) visas under section 501 that had been brought into question by the Full Courts decision in Sales.
    See: Fact Sheet 79 - The Character Requirement

    Advice for clients

    If you are in Australia or overseas and you believe you are affected by the above decisions, you should contact the department.

    If you are in Australia you can contact the national telephone service inquiry line below.

    Contact details of DIAC offices overseas.
    See: Immigration Offices outside Australia

     

    Further information is available on the department's web site.
    See: www.immi.gov.au

    The department also operates a national telephone service inquiry line.
    Telephone: 131 881
    Hours of operation: Monday to Friday from 9 am to 4 pm (recorded information available outside these hours) for the cost of a local call anywhere in Australia.

    Fact Sheet 89. Produced by the National Communications Branch, Department of Immigration and Citizenship, Canberra.
    Revised 30 July 2008.

    © Commonwealth of Australia 2009.