Have you been served by the Department of Home Affairs with a Notice of Intention to Consider Cancellation (or abbreviated as ‘NOICC’) or a decision to cancel your substantive visa? It is indeed a stressful, upsetting and traumatising experience. At Visa Plan, our experienced migration lawyers can help you win, 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 exist and you are physically outside Australia.
In other cases, the Department issues a NOICC to which you have to respond within the set time limit as to why your visa should not be cancelled. A NOICC affords you the last opportunity to comment on and provide response prior to the Department cancelling your visa. In drafting the response, you must be meticulous and strategic.
The Department is bound to take into account matters stipulated in the relevant statutory provisions, which generally include your time spent in Australia, 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. Visa Plan is a firm of specialists in complex migration matters, such as visa cancellations.
General Cancellation Powers
- 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 is 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.
Extraordinary Circumstances for Visa Cancellation
- Emergency cancellation on security grounds
- Cancellation of business visas
- Automatic cancellation of student visas
- Cancellation of regional sponsored employment visas
- 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.
After Visa Cancellation
Once your visa is cancelled, you will immediately lose work rights attached to your visa and be granted a Bridging visa E only to remain lawfully in Australia for a very limited duration. Section 48 imposes a bar on further visa applications in Australia, with limited exceptions. When you leave Australia, the 3 year ban is enforced pursuant to Public Interest Criterion 4013, which can only be waived on compelling and compassionate grounds for the granting of a visa within the period of the ban.
Due to serious consequences, you must carefully analyse whether the cancellation has been properly made and whether you have reasonable prospects of success should the decision be appealed. We note that well-prepared application for work rights may allow you to continue working whilst you wait for your appeal to be heard. This is important for the majority of people as the waiting period process can be quite lengthy.