Australian migration law gives the Minister for Immigration and Border Protection powers to cancel visas.
The cancellation power to be used and the procedure for cancelling the relevant visa depends on the subclass of the visa being considered for cancellation and the visa holders personal circumstances which led to the DIBP taking action to cancel the visa.
Visas are regularly cancelled for:
- Breaching a condition of the visa
- The grounds for granting the visa have changed
- Change of circumstances
- Providing false, misleading, incorrect information or fake documents
- Not a genuine entrant
In most cases the Department of Immigration and Border Protection will issue a Notice of Intention to Consider Cancellation (NOICC) of a visa. This NOICC will give the visa holder time to respond and provide evidence and submissions as to why the visa should not be cancelled. The response will be considered and a then a decision made, to either cancel the visa or not cancel the visa.
While making their decision the DIBP will consider certain factors depending on the power being used to cancel the visa, such factors may include:
- The amount of time spent in Australia;
- The visa holder’s contribution to Australian communities;
- The visa holder’s criminal record;
- The risk the visa holder may pose to the Australian community;
- Whether the visa would have been granted if the correct information was given.
If a visa is auto-cancelled (see section 501 (3A)), the visa holder will not receive a NOICC but a notification of cancellation their visa as well as written notice giving them the opportunity to make an application to have the cancellation decision overturned. This is known as a 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 a visa is cancelled while the visa holder is in Australia all current visas and visa application are cancelled. Once cancelled, the visa holder becomes unlawful and must act to regularise their status in Australia.
This is done by:
- Lodging an appeal against the decision and applying for a bridging visa for the period of the appeal;
- Applying for a bridging visa to allow them to remain lawfully in Australia until the bridging visa application is assessed;
- Obtaining a bridging visa on departure from Australia.
Once a visa is cancelled the visa holder will lose their right to work and will have to make an application to get working rights to attach to any bridging visa E granted to allow the person to remain in Australia.
Section 48 Bar from Lodging Further Applications
A further consequence of cancellation is known as a s 48 bar stopping cancelled-visa holders 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
If a visa is cancelled and the cancelled visa-holder leaves Australia or is not in Australia, then they will face a 3 year ban from grant of further temporary visas to which PIC 4013 applies unless the person 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 cancelled visa holders staying in Australia and achieving their migration goals.
It is therefore advised that cancelled visa holders get a competent immigration lawyers to advise, prepare and act for them in their appeal.
How can Barclay Churchill help you?
Protection Visa can be refused for several reasons. The Protection Visa has strict criteria which all must be met and with only very limited waiver provisions.
To satisfy these requirements, it is essential that all applications are assessed, structured and lodged in a way that meets all applicable DIBP law and policy. Barclay Churchill has the expertise to handle the most complex cases and achieve the best outcomes in circumstances where the applicant would have failed had they applied without our support.
What to do next
To get the right advice, contact us for a consultation with one of our specialist advisors.