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Visa Cancellation

Having been served with the Department’s intention of cancellation or decision to cancel your substantive visa? It is indeed stressful, upsetting and traumatizing experience, especially if the event has not been foreseen. At Visaplan, our experienced migration lawyers can help you appeal in cases of visa cancellation to the Department of Home Affairs or the Administrative Appeals Tribunal (or ‘AAT’), giving you another chance to stay in Australia lawfully and continue your journey down under.

 

Procedures in Visa Cancellation

The Department may automatically cancel your Australian visa without prior notice in certain and limited circumstances. For example, this automatic cancellation may be exercised when you have accumulated a substantial criminal record, committed sexual offences against a child, or are serving a sentence of imprisonment, on a full-time basis in a custodial institution for these offences. It may also apply when any of the grounds under section 128 of the Migration Act exists and you are physically outside Australia.

In other cases, the Department issues a Notice of Intention to Consider Cancellation (“NOICC”). The NOICC notifies a period of time in which you can respond and submit evidence as to why your visa should not be cancelled. What the Department will consider is dependent on a statutory power being invoked, but will generally include your time spent in Australia, your migration history, criminal record, contribution to the Australian community, any risks you may pose to the Australian community and whether you have provided incorrect information in your previous Australian visa applications. NOICC affords you the last opportunity to comment and provide response prior to the Department cancelling your visa. In drafting the responses, you must be meticulous and strategic, and Visaplan is specialised in providing expert assistance in complex matters, such as visa cancellation.

General types of visa cancellations by the Department:

  • Section 109: Providing incorrect information or false documents

  • Section 116: General cancellation power, including breaching visa conditions and posing a health risk

  • Section 128: Cancellation without notice when the holder outside Australia

  • Section 501: Cancellation on character grounds

  • Section 501(3A): Mandatory cancellation when the holder is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for substantial criminal record or sexually based offences involving a child

 

In some extraordinary circumstances, there may be:

  • Emergency cancellation on security grounds

  • Cancellation of business visas

  • Automatic cancellation of student visas

  • Cancellation of regional sponsored employment visas

There are also cancellations that can be exercised personally by the Minister for the Department, which are:

  • Section 133A: Minister may personally cancel a visa on section 109 grounds.

  • Section 133C: Minister may personally cancel a visa on section 116 grounds.

  • Section 501(3): Minister may personally cancel a visa on section 501 grounds.

  • Section 501A: Minister may personally set aside a non-adverse decision of delegate or Tribunal and cancel a visa.

  • Section 501B: Minister may personally set aside and substitute an adverse decision before the Tribunal concludes.

  • Section 501BA: Minister may personally set aside the decision of a delegate or the Tribunal to revoke cancellation.

What happens once your visa has been cancelled?

Once your visa is cancelled, you will immediately lose the work rights attached to your visa and be granted a Bridging visa E only to remain lawfully for very limited duration. Section 48 imposes a bar on further visa applications in Australia with limited exceptions. When you leave Australia, the three year ban comes into force pursuant to Public Interest Criterion 4013, which can only be waived on compelling and compassionate grounds for the granting of a visa within the ban period. 

Due to serious consequences, you must analyse carefully whether the cancellation has properly been made and whether you have reasonable prospects of success should the decision be appealed to the AAT. We note that well-prepared application for work rights may allow you to continue working whilst you wait for your appeal to be heard by the AAT. This is important for the majority of people as the waiting period process can be quite lengthy. In light of the seriousness of issues around visa cancellations, we urge that you find and retain competent migration lawyers, like Visaplan, to guide you through the highly complicated process.