13 Apr

'In What Circumstances Can My Visa Be Cancelled?' By Saro Mugnaini, LegalVision

The Minister for Home Affairs (or their delegate) has the power to cancel your temporary or permanent visa. For example, certain acts require the Minister to exercise their discretionary or mandatory cancellation powers. The Minister may cancel your visa for several reasons, such as:

  • providing fraudulent documents to support the visa application; or 
  • being convicted of a serious crime (since the grant of your visa). 

This article will address the most common reasons for visa cancellations, the avenues for review and appeal, and the consequences of the cancellation for visa holders currently living in Australia.  

Table of Common Cancellation Powers

Category Type of Visa Common Reasons* Power to Cancel** Appeal
Section 109: Incorrect Information  Permanent and Temporary Visas
  • Providing fraudulent documents.
  • Providing incorrect information. 
  • Failing to notify the Department of a change in circumstances. 
Discretionary Administrative Appeals Tribunal 
Section 116: General grounds Permanent and Temporary Visas
  • Reasons for the visa grant no longer exist. 
  • Non-compliance with visa conditions. 
  • Identity of the visa holder. 
  • Payments weer made or offered to facilitate the visa (particularly relevant to visas requiring sponsorship.)
  • The presence of the visa holder risks health, safety, and public order for Australia and its citizens. 
Discretionary but mandatory where the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs intervenes personally. Administrative Appeals Tribunal 
Section 501(2): Character Permanent and Temporary Visas
  • There is reason to suspect the visa holder is not of good character.
  • The visa holder has committed or may commit a criminal activity or act that carries a prison sentence of less than 12 months.
Discretionary Administrative Appeals Tribunal 
Section 501(3A): Character Permanent and Temporary Visas
  • The visa holder has committed a crime and is sentenced to more than 12 months in prison. Alternatively, the visa holder has committed a crime and is sentenced to multiple prison terms, where the total of these terms is more than 12 months in prison. 
  • The visa holder is found guilty of sexually based offences involving a child. 
Mandatory Administrative Appeals Tribunal 

*This is not an exhaustive list and only addresses the most common reasons for which the Minister can cancel a visa.

** If the power to cancel is discretionary, then the Department for Home Affairs has the option not to cancel the visa even though the reason for cancellation exists. On the other hand, if the power to cancel is mandatory, the Department must cancel the visa.

How Do I Know If My Visa Has Been Cancelled?

For all visa cancellations, the Department will send you (or your representative on the record) a Notice of Intention to Consider Cancellation (NOICC). The NOICC will outline why your visa should be cancelled and provide you with an opportunity to respond. Additionally, the exact timeframe will vary depending on the basis for the cancellation.

How Long Do I Have to Respond to a Notice?

Each cancellation category will have specific deadlines to respond. Additionally, the NOICC will clearly state the number of days you have to respond. Therefore, it is important that you do not ignore a NOICC.

What Are The Consequences For Secondary Visa Holders?

If you are the main applicant and your visa is cancelled, the visas of your family members will also be cancelled.

What Rights Do I Have If My Visa Has Been Cancelled?

You can appeal the decision to cancel your visa to the Administrative Appeals Tribunal (AAT). However, you must lodge an appeal within the prescribed time frame. Then, if your AAT appeal is unsuccessful, you may be able to appeal the decision to the Federal Circuit and Family Court of Australia (FCFCA), provided you can argue that the AAT has made a legal error. However, you can only exercise your right to appeal within the prescribed deadlines.

My Visa Has Been Cancelled. What Happens Next?

If your visa has been cancelled, your presence in Australia is unlawful. You may then be subject to detention and eventual deportation from Australia.

The cancellation of your visa limits the types of visas you can apply for whilst you are in Australia, due to the section 48 bar under the Migration Act.

Key Takeaways

If you receive a NOICC, take action immediately. See a professional in immigration law equipped with the skills to navigate you through this process. This will ensure you have the best opportunity to avoid cancellation.

Evidently, a visa cancellation has dire consequences for you and your family. If you experience a visa cancellation, receive a NOICC, or wish to appeal a cancellation, our experienced immigration lawyers can assist as part of our LegalVision membership. For a low monthly fee, you will have unlimited access to lawyers to answer your questions and draft and review your documents. Call us today on 1300 544 755 or visit our membership page.

Original blog by Saro Mugnaini, Immigration Assistant, LegalVision. 

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