Under Australian migration law there are various visa cancellation powers available to the Minister for Immigration and Border Protection when he is considering cancelling an Australian visa.
Which cancellation power will be used, and the processes that attach to the cancelling of the relevant visa, will depend on the subclass of visa being considered for cancellation and your personal circumstances leading to the DIBP taking action to cancel the visa.
Visas are regularly cancelled for:
- Breach of a visa condition (For example working without work rights or beyond your work limitation)
- Ground up on which the visa was granted no longer exists (For example your employment has finished and you are on a 457 visa)
- Change of circumstances (For example a relationship breakdown on a partner visa)
- Providing false, misleading, incorrect information or bogus documents
- Being of bad character (For example you have committed a criminal offence since your visa was granted)
- Not a genuine entrant (For example you have a student visa but you are not studying)
Process for Cancellation
In most cases the Department of Immigration and Border Protection will issue a Notice of Intention to Consider Cancellation (NOICC) of your visa. This NOICC will give you a period of time to respond and provide evidence and submissions why your visa should not be cancelled. Your response will be considered and then a decision either to cancel your visa or not cancel your visa. If you do not respond within the time provided, the DIBP will then move to cancel your visa.
The things that the DIBP will take into consideration in deciding to cancel a visa or not will again depend on the power being used to cancel but may include, your time in Australia, contribution to Australian community, your criminal record or lack of, any risk you may pose to the Australian community, whether your visa would have been granted if you gave correct information,
If your visa is auto-cancelled (see section 501 (3A)), you will not receive a NOICC and will receive notification of cancellation of your visa and written notice giving you the opportunity to make an application to have the cancellation decision overturned (revocation of cancellation application)
Cancellation without Notice
Section 128 of the Migration Act allows the Minister to cancel a visa without notice if the person is physically outside of Australia and a ground for cancellation under s 116 exists. People with visas cancelled under s 128 often fly back to Australia to after a holiday or trip home to be told at immigration that they are denied entry as their visa has been cancelled. In this instance, the Notification of Cancellation will also advise that you have a limited time frame to make a submission why your visa should be reinstated.
Consequences of Cancellation
In Australia – Unlawful Status
If your visa is cancelled in Australia, then all bridging visas attaching to further applications are also cancelled. Once cancelled, you become unlawful and therefore, must take action to regularise (or make lawful) your status in Australia. This is usually done by –
- Lodging an appeal against cancellation and then applying for a bridging visa for the period of the appeal
- Applying for a bridging visa to allow your to remain lawful in Australia why awaiting a decision on a visa application lodged before the cancellation
- Obtaining a bridging visa on departure from Australia grounds
Once your visa is cancelled, you will also lose work rights attaching to any visa or bridging visa cancelled and will have to make application to get working rights to attach to any bridging visa E granted to you to remain in Australia.
Section 48 Bar from Lodging Further Applications
A further consequence of cancellation is that you are affected by what is known as a s 48 bar stopping you from lodging any further visa applications in Australia save for a limited range of visas that can still be lodged including subclass 820 / 801 partner visas and protection visas.
Out of Australia – Public Interest Criterion 4013 – 3 year Ban
If you have a visa cancelled and leave Australia or are out of Australia, then you will face a 3 year ban from grant of further temporary visas to which PIC 4013 applies unless you can show compelling or compassionate reasons for grant of the visa within the 3 year ban period.
Appeals Against Australian Visa Cancellation to the Administrative Appeals Tribunal – Migration Review Division
Being stopped from lodging further applications in Australia, means the success of your appeal against cancellation is critical to you staying and achieving your Australian migration goals.
Also, as an example, a well-prepared work rights application associated with the appeal, will then allow you to support yourself and family while you are in Australia waiting for your appeal to be heard.
Appeal periods can be up 2-years to the AAT – MRD and well beyond this period if you then lodge an appeal to the Federal Circuit Courts
Time frames for review of a cancellation decision are often very short (for example 7 days) and it is essential to lodge an appeal to the appropriate Tribunal within time frames or your right of appeal is lost.
Therefore, get competent immigration lawyers to advise, prepare and act for your in your appeal.
How can Turner Coulson Help?
Our immigration lawyers / advisors have over 20 years of experience arguing cases on behalf of clients in the AAT achieving success where the client would have lost if self-represented.
Don’t take a chance with your future. Call us now for a consultation so that you can get a clear picture of your chances of success and how your case should be argued. We can then take your matter for you to lodge, prepare and appear at the AAT for you –