Australian Visa Cancellation

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Australian Visa Cancellation

The Department may cancel your Australian visa without prior notice in certain limited circumstances. For example, automatic visa cancellation may occur when you have accumulated a substantial criminal record, committed a sexual offence against a child, or are serving a sentence of imprisonment. It may also apply when any of the grounds under section 128 of the Migration Act are present and you are physically outside Australia.

In other cases, the Department issues a Notice of Intention to Consider Cancellation (NOICC), giving you the opportunity to respond within a set time limit, to explain why your visa should not be cancelled. This NOICC is your best opportunity to preserve your current visa before the Department cancels it. In drafting the response, you must be meticulous and strategic, as the Department will not change its mind lightly.

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 specializes in complex migration matters, such as visa cancellations, and can carefully craft the most effective response to your NOICC.

General Powers of Visa Cancellation

  • Section 109 Cancellation may occur when incorrect information or false documents have been fraudulently provided.
  • Section 116 Cancellation may be invoked as general cancellation power, for example, in the events of visa condition breaches and health risks.
  • Section 128 Cancellation may be exercised without notice when the visa holder is outside Australia.
  • Section 501 Cancellation may occur generally on character grounds.
  • Section 501(3A) Cancellation may occur as mandatory cancellation when the visa holder is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for a substantial criminal record or sexually based offence involving a child.

Enforcing the Visa Cancellation Powers

  • Section 133A: The Minister may personally cancel a visa pursuant to the Section 109 Cancellation power.
  • Section 133C: The Minister may personally cancel a visa pursuant to the Section 116 Cancellation power.
  • Section 501(3): The Minister may personally cancel a visa on pursuant to the Section 501 Cancellation power.
  • Section 501A: The Minister may personally set aside a non-adverse decision of his or her delegate, or a member of the Tribunal, and cancel a visa.
  • Section 501B: The Minister may personally set aside and substitute an adverse decision before the Tribunal concludes.
  • Section 501BA: The Minister may personally set aside the decision of his or her delegate, or a member of the Tribunal, and revoke the cancellation.

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

Cancellation and Notice of Intention to Consider Cancellation

Many student visa holders who transition to a different visa often inquire if they can unilaterally cancel their student visa. The simple answer is No. Your action or inaction may result in cancellation that is exercised by the Department of Home Affairs, but you cannot willingly cancel your own visa.

Yes. Permanent visas can be cancelled, although higher thresholds may apply as compared to temporary visas.

According to the statistics, the Department is exercising its statutory power of visa cancellations more actively than before and the number of incidents are quite notable.

Ministerial Direction No. 79 was introduced on and enforced since 28 February 2019 in relation to visa cancellations and refusals under section 501 and revocations of mandatory visa cancellations under section 501CA of the Migrations Act 1958. It imposes strong measures against domestic violence perpetrators.

The primary considerations as per Ministerial Direction No. 79 include:

  • Protection of the Australian community from criminal or other serious conduct
  • Best interests of minor children in Australia
  • Expectations of the Australian Community

Protection of the Australian community from criminal or other serious conduct

  • Nature and seriousness of the non-citizen’s conduct to date
  • Risk to the Australian community if the non-citizen commits further offences or engage in other serious conduct

Best interests of minor children in Australia

  • Nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact)
  • Extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements
  • Impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child
  • Likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways
  • Whether there are other persons who already fulfil a parental role in relation to the child
  • Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child)
  • Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect
  • Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct

Expectations of the Australian Community

  • Whether the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa

You would immediately be granted a Bridging visa E and lose any work rights previously attached to your visa. The BVE is only intended to allow you to remain lawfully for a very limited duration to arrange your outbound departure.

In the event of visa cancellation, section 48 imposes a bar on further visa applications in Australia, with limited exceptions. When you leave Australia, you may be subject to a 3 year ban, pursuant to Public Interest Criterion 4013, which can only be waived on compelling and compassionate grounds.

If you have already had your visa cancelled, there may be room for you to make a visa cancellation appeal with the AAT. As not all matters are capable of being appealed, you need to check your eligibility for review.

Due to these serious consequences, it is advisable to have a visa cancellation specialist carefully analyse whether the visa cancellation has been properly made and whether you have reasonable prospects of success on appeal. In the meantime, a 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 many appellants, as it may take a long time for your matter to be decided.