Introduction

At Kris Ahn Lawyers, we specialise in resolving complex visa cancellations with creative, strategic legal solutions. In this case study, we highlight how our expert legal team successfully reversed an automatic visa cancellation under section 128 of the Migration Act 1958, resulting in full reinstatement of our client’s Electronic Travel Authority (ETA) visa. The cancellation was based on an allegation of incorrect information under section 101(b) — a claim we effectively dismantled through precise legal advocacy.

Background: What is Section 128 of the Migration Act?

Section 128 of the Migration Act 1958 empowers the Department of Home Affairs to cancel a visa without prior notice if the visa holder is outside Australia and a ground for cancellation under section 116 exists. In this case, the Department relied on section 116(1)(d), which permits cancellation if incorrect information was provided, as defined under section 101(b).

In this case, the client’s Electronic Travel Authority (subclass 601) was cancelled on the basis of section 116(1)(d), linked to section 101(b), alleging failure to disclose a previous identity due to a date of birth change​.

Why the Department Cancelled the Visa?

The Department alleged the client answered “No” to the alias question in the ETA application and failed to declare a previous date of birth used in earlier visa applications. Facial recognition data linked two identities, prompting the Department to conclude that an alias had been withheld, triggering automatic cancellation under section 128​.

The cancellation was issued without notice while the client was offshore. As a result, their eligibility to enter Australia was revoked, and they faced a three-year exclusion period under Public Interest Criterion 4013.

How We Challenged the Section 128 Visa Cancellation?

Our legal team submitted a revocation request within the 28-day window, presenting a carefully structured legal submission supported by documentary evidence. Our arguments included:

1. No Incorrect Answer Was Given

The ETA form only asks if the applicant has used other names (aliases). It does not ask about previous dates of birth. Since the client’s name had never changed, their “No” response was accurate​.

2. The Identity Correction Was Lawful

The client’s birthdate was legally corrected through a Korean family court decision in 2023. The current passport reflects the correct date of birth, and all travel since has used consistent and lawful documentation.

3. No Evidence of Intent to Mislead

The client had:

• No history of visa breaches or overstay
• Always fully complied with visa conditions
• Never attempted to conceal identity or mislead the Department

This was a matter of form limitations, not deception.

4. Exclusion Period Would Cause Undue Hardship

The three-year exclusion under PIC 4013 was severe and unfair, especially considering the form did not allow disclosure of previous dates of birth. Penalising the applicant for a lack of opportunity to provide information is inconsistent with procedural fairness.

We supported our legal submission with:

• Korean court orders and official translations
• AFP police check under both dates of birth
• Passport records
• Social media and identity verification evidence

Outcome: Visa Cancellation Revoked

On 23 April 2025, the Department formally revoked the cancellation under section 131 of the Migration Act. They accepted our argument that:

• The ETA form did not request prior birth dates
• No false information had been provided
• The client did not breach section 101(b)

As a result:

• The client’s ETA cancellation was reversed
• The three-year exclusion period was lifted
• The client regained eligibility to travel to or apply for visas to Australia

Why This Case Matters

• Visa cancellations under section 128 can be successfully challenged.
• Application form design flaws should not penalise applicants.
• Prompt and tailored legal submissions can reverse harsh decisions.

FAQs: Section 128 Visa Cancellations

1. What is Section 128 of the Migration Act?

Section 128 allows the Department to cancel a visa without notice if the visa holder is outside Australia and a ground for cancellation exists under section 116.

2. Can a Section 128 cancellation be overturned?

Yes. A visa holder can lodge a revocation request under section 131 within 28 days of receiving the notice, supported by legal and evidentiary arguments.

3. What happens if my ETA is cancelled while I’m overseas?

Your ETA is no longer valid, and you will be subject to an entry ban unless the cancellation is revoked. You may also face a 3-year exclusion under PIC 4013 unless successfully challenged.

More Successful Case Studies

We’ve helped countless clients secure positive outcomes in complex immigration matters:

• Case Study: Successful Ministerial Intervention
• Case Study: Defending Against Visa Cancellation
• Case Study: Turning a Student Visa Refusal into Success
• Case Study: Securing Permanent Residency through a 186 ENS Visa
• Case Study: Ministerial Intervention Success – Permanent Residency Through the Australian Child

Why Choose Kris Ahn Lawyers?

At Kris Ahn Lawyers, we have extensive experience solving complex immigration challenges. When the stakes are high, our clients trust us to deliver:

• Expert Guidance: Our team includes Accredited Specialists in Immigration Law, providing expert advice and strategies for even the most complex visa issues.
• Tailored Solutions: We understand that every client’s case is unique, and we create personalised strategies to protect your future in Australia. From your first consultation to final outcomes, you are guided by experts who understand the law, the risks, and how to advocate fiercely on your behalf.
• Proven Success: With a track record of achieving positive outcomes in both straightforward and challenging cases, we have the experience to defend your visa status effectively.

If you’ve received a cancellation notice under section 128 or any visa refusals, don’t risk delay. Contact our team today to book a consultation and explore your legal options.

Disclaimer: Not Legal Advice

The information provided in this blog post/article is for general informational purposes only. It does not constitute legal advice or create a representative-client relationship. While we strive to provide accurate and up-to-date information, the content may not reflect the most current legal developments or specific circumstances.

Do not rely solely on the information presented here – but please book in a consultation with us to see how you this information applies to you and may benefit you. Any reliance on the material in this post is at your own risk.

Australian immigration law is arguably one of the most complex laws in Australia. Seek professional legal advice tailored to your individual needs before making any decisions based on the content of this post.