When an Australian visa is cancelled, this means that a visa which was previously granted by the Department ceases to exist. A visa cancellation Australia can result in serious consequences for affected individuals (which may extend to family members who are visa dependents of the primary visa holder). Any options which may be available in addressing the cancellation will depend on the individual circumstances of each case, key factors being the reason/s or grounds on which the visa is cancelled and whether the (now previous) visa holder is located onshore or outside Australia at the time of the cancellation.
The Minister or a delegate of the Minister can cancel a visa. This can be discretionary, mandatory or by operation of law. Cancelling a visa is at the discretion of the Department of Home Affairs (the Department). If the Department cancels your visa, it may also cancel the visas held by any of your family members. Your employer, a sponsor or family member cannot cancel your visa.
There are several grounds under which a visa cancellation Australia may occur under the migration provisions, and this will determine the Australian visa cancellation procedure that must be followed by the Department, including notification requirements and when the visa may be cancelled.
For example, a permanent visa cancellation Australia cannot occur under Subsection 116(1) of the Migration Act 1958 (Cth) if the holder of the visa is in the migration zone (which essentially means, in Australia) and was immigration cleared on last entering Australia.
Or, if the Minister has determined that there are grounds for cancelling the visa under section 116 and the visa holder is outside Australia, the visa may be cancelled without notice being provided to the visa holder.
Your visa may be cancelled due a number of specified circumstances, including if you have not complied with your visa conditions, you do not meet the character test, or you provided false information on your visa application.
The migration provisions set out the Australian visa cancellation procedure. If you are in Australia or immigration clearance, the Department will usually notify you of its intention to consider cancelling your visa and give you the opportunity to put forward reasons as to why your visa should not be cancelled.
If your visa is cancelled, you may be barred from making further visa applications in Australia. You may also be prevented from being granted certain visas to travel to, enter or stay in Australia.
What Happens If Your Visa Is Cancelled?
A central principle of Australia’s migration provisions is that all non-citizens must hold a valid visa at all times to remain lawfully in Australia. If your visa is cancelled and you are located in Australia at that time, you will become an unlawful non-citizen, unless you hold, or you are immediately granted, a substantive visa or bridging visa. A substantive visa is any visa excluding a bridging visa, criminal justice or enforcement visa). Not holding a valid visa which is in effect puts you at risk of being detained or removed from Australia.
A Visa Cancellation Australia Can Have Far-Reaching Impacts
When a visa is cancelled, this will form a part of your immigration record, thus making it more difficult to be granted a visa to Australia in the future. You may also be subject to an exclusion period or, in the most serious of cases, permanent exclusion from Australia.
You will need to declare the visa cancellation in all future visa applications and associated forms that you submit to the Department. It can also potentially impact on your ability to be granted a visa to other countries, as well as in other matters where having a visa cancelled is a relevant issue.
It is also important to point out that a visa cancellation Australia may affect other visas which you hold at that time. If you hold a Bridging Visa A, B or C which was granted whilst you held a substantive visa that is subsequently cancelled, the Bridging Visa will cease to exist as a result of the cancellation. To demonstrate how this works, consider the following example.
You are in Australia as the holder of a Subclass 600 Visitior visa and you apply for an onshore Subclass 820/801 Partner visa. As a result of having lodged an application for a substantive visa, you are granted a Bridging Visa A (which will come into effect once the Visitor visa ceases, at the end of its visa term). If the Department cancels your Visitor Visa due to non-compliance with a visa condition, the Bridging Visa A will also cease to exist.
Given the potentially serious nature of a visa cancellation Australia and the far-reaching impacts that may result, it is vitally important that if you are affected, that you are fully informed about what this means for you based on your own personal circumstances. Key questions concerning how the cancellation affects your visa status in Australia, whether you have the right to seek a review of the decision, and what other options you may have (if any) as a result of the cancellation (for example, you might be able to apply for another visa) all need to be carefully considered and addressed to reach the best overall outcome in the event of a cancellation.
Knowledge Is Key To Preventing A Visa Cancellation Australia
Having the right information will help you to achieve this. This is where engaging a professional can assist. They will be able to expertly guide you through this process based on their experience and specialised knowledge in this complex area of the law. A visa cancellation, including a partner visa cancellation or permanent visa cancellation Australia can also be a particularly distressing event for those affected and speaking with someone who is trained in this area can give you a greater sense of confidence and peace of mind as you navigate through this process.
In this article, we take a closer look at some of the reasons why a visa may be cancelled, options which may be available to you in the event that your visa is cancelled and what you should do if you find yourself in this situation.
When Can The Department Cancel Your Visa?
There are several grounds on which an Australian visa can be cancelled, including the following:
- providing incorrect information in a visa application or submitting a bogus document to an officer in connection with your immigration matter;
- where a visa was granted based on a fact or circumstance which no longer exists (for example, a Subclass 300 Prospective Marriage visa was granted on the basis that you and your fiancé genuinely intended to marry within the visa period and to live together as spouses. However, after the visa has been granted, the relationship has ended, and the marriage will not take place. Likewise, if you were granted a Subclass 820 visa on the basis of your relationship with your Australian de facto partner, and the relationship has ended, a partner visa cancellation may occur (note there are circumstances where a partner visa may still be granted, even if the relationship has ended));
- non-compliance with a visa condition (e.g. if you are a Visitor visa holder who is subject to, and are found to have breached, condition 8101, which prohibits you from engaging in work in Australia);
- if your presence in Australia may pose a risk to the health, safety or good order of the Australian community or a segment of the Australian community, or to the health or safety of an individual or individuals;
- as a result of a consequential cancellation, where you hold a visa only because another person has been granted a visa and their visa is cancelled (e.g. if you are granted a Subclass 482 Temporary Skill Shortage (TSS) visa as a de facto partner, and the primary visa holder’s visa is cancelled, your visa will also be cancelled);
- if you fail to pass the character test; and
- if you are a student visa holder who is deemed to be a non-genuine student or to have engaged in conduct which is not contemplated by the visa (see links to further information on student visa cancellations below in this article).
Let us now take a closer look at some of the grounds for cancelling a visa.
Failing To Pass The Character Test
The Minister can cancel your visa if you do not pass the character test.
The Minister may cancel your visa if you:
- have ever been sentenced to 12 months or more imprisonment (regardless of time served); or
- have been convicted of, had a charge proven for or have been found guilty of, a sexually based crime involving a child.
You will have 28 days to make representations as to why you think the decision to cancel your visa should be revoked. The Department will consider all the circumstances of your case before it responds.
In other cases where the Department determines that you fail the character requirements, it will provide you with an opportunity to put forward reasons as to why your visa should not be cancelled before it proceeds to cancel your visa.
Paying For Sponsorship
The Department may cancel your visa if you are involved in paying for a visa sponsorship.
It will consider all circumstances before making a decision. This will include:
- if you initiated or were complicit in the paying for sponsorship;
- your intent in coming forward (actively providing the Department with information)
You will have an opportunity to put forward reasons as to why your visa should not be cancelled. You should provide evidence of the strength of your ties to Australia as well as your contribution to the Australian community.
Changes To Study
The Department may cancel your student visa if you are no longer enrolled in a registered course. Your enrolment ends when you complete the course (even if this is earlier than the end date on your Confirmation of Enrolment (CoE)).
What you must do after you complete your course depends on your enrolment arrangement.
If you complete the course for which your visa was granted, you will have three months to depart Australia or apply for another visa.
A student visa cancellation may occur if:
- you complete the course for which the student visa was granted and you do not depart Australia or apply for a new visa within three months
- you have changed courses since your student visa was granted and your new CoE for your principal course has an earlier end date and you do not depart Australia or apply for a new visa within 28 days of completing the course
- you are studying more than one course on your visa (as a course package) and you complete a course early and have a gap between courses of more than two months (except if this gap occurs between the end of an academic year and the beginning of a new academic year).
Before a student visa cancellation, the Department it will consider your situation. This includes if:
- you legitimately finished the course early
- you have a good academic record
- it is reasonable to expect you to enrol in another course during the course gap
A student visa cancellation may also occur if you are non compliant with any other student visa conditions.
Notification Of Visa Cancellation
In most cases of visa cancellations under Australian visa cancellation procedure, the Department is required to notify you of its intention to cancel your visa and to allow you an opportunity to respond. However, under Australian visa cancellation procedure, the Department has the power to cancel your visa without notice in the following circumstances:
- if it deems there to be grounds for the cancellation and you are outside Australia;
- in certain cases where a visa is cancelled on character grounds; and
- in certain cases where the Minister personally cancels your visa.
What Should You Do If Your Visa Is Cancelled?
Receiving a notice of a visa cancellation Australia can be a stressful event for many people, especially if it affects a long-term plan where you are seeking to settle in Australia permanently. Keep in mind, however, that having a visa cancelled may not necessarily be the ‘end of the road’ to achieving your goals. As serious as the potential consequences of a visa cancellation Australia may be (which will be dependent on your individual circumstances), there may be things you can do to still achieve a positive overall outcome. Although it may take longer for you to reach your ultimate goal/s and you are likely to incur additional costs not previously anticipated, there may be options available to you.
Understand Why Your Visa Has Been Cancelled
As a first step, you should carefully read through the visa cancellation notice received from the Department and take note of important information such as the reason/s for the cancellation, whether you are entitled to have the decision reviewed by the Administrative Appeals Tribunal (AAT) and if so, the time-limit for applying for the review.
Confirm Visa Status
Next, you need to confirm your current visa status as a result of the cancellation. If you are in Australia at the time of the cancellation, it is vital that you are a lawful non-citizen to avoid any further issues or complications arising. If this is not the case, as a matter of urgency, you must take steps to regularise your visa status so that you are not unlawful. No doing so may limit your ability to be granted a visa to Australia in the future, with the potential imposition of an exclusion period in certain instances (via the operation of Public Interest Criteria (PIC) 4014). Similarly, if you are removed from Australia as a result of a visa cancellation, an exclusion period will apply (Special Interest Criteria (SRC) 5002).
If your visa is cancelled on character grounds, you will be unable to validly apply for another visa whilst you remain in Australia. You may also be subject to permanent exclusion from Australia.
Can You Apply For A Review Of The Cancellation Decision?
In general, a review is available if you are in Australia at the time your visa is cancelled, except where:
- you were in immigration clearance at that time;
- the Minister personally cancels your visa on certain grounds;
- in certain cases where a business visa is cancelled; and
- in certain cases where a visa is cancelled based on failing to pass the character test.
If you proceed with a review of your case, you must ensure that you apply for the review within the strict deadlines which apply. If you incorrectly apply, or you leave it too late and miss the deadline, you will lose your opportunity to have the decision reviewed in most instances. The AAT does not have the power to extend this time limit (except in certain cases where the visa has been cancelled on character grounds). You will find the end date to apply for the review stated in your visa cancellation notification letter received from the Department. Be aware the time limit can be as short as 9 days of notification of the decision. You therefore need to act quickly.
Can you Apply For Another Visa? Take Note Of Section 48
If you are either ineligible to have your cancellation decision reviewed, or you decide not to proceed with the review, you might consider whether you can apply for another visa whilst you remain onshore. Be aware that this option is in many cases limited by the application of section 48 of the Migration Act. Under this provision, if you do not hold a substantive visa and since last entering Australia, your visa has been cancelled on certain grounds, you can apply only for a visa from a selected list (which includes an onshore partner visa or a Bridging Visa).
Public Interest Criteria (PIC) 4013
Apart from section 48, you may be restricted from applying for another visa for three years (where PIC 4013 applies) if your visa has been cancelled, unless the Department is satisfied that:
- compelling circumstances that affect the interests of Australia exist; or
- compassionate or compelling circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen exist.
If you depart Australia as an unlawful non-citizen or as a Bridging C, D or E visa holder, you could also be subject to a three year exclusion period when you apply for another visa which is subject to PIC 4014 (note that the same waiver conditions apply to PIC 4014 as outlined above for PIC 4013). This is why regularising your status is so crucial if your visa has been cancelled.
Consider You Options Carefully
As demonstrated, if you do not proceed with an appeal, your options may be significantly limited. Therefore, it might be worth seriously considering whether to take this step (if this is available to you), after being fully informed as to the potential benefits and disadvantages of proceeding with a review of your case. In deciding whether to do so, you will need to carefully consider whether you can present a persuasive argument as to why the Department made the incorrect decision in cancelling your visa. It is important that you consider the likelihood of a successful outcome as a result of proceeding with the review, balanced against other factors such as cost and time-delays which are currently being experienced by the AAT; what the appeal means for you whilst you await a decision (for example, what rights, if any, you will have to work in Australia during this period); and how taking this action compares with alternative option/s (such as applying for another visa). As you can see, there are multiple elements you will need to take into account in making your decision, and given the complexity of issues involved, we highly recommend that you consult with a migration expert before making a decision.
Get More Information
We have prepared a series of detailed guides which provide further information about potential options that may be available to you after your visa has been cancelled, including information about the AAT review pocess, other potential options after AAT refusal as well as your options if there is no right of merits review for the cancellation decision. You can access them by clicking on the links below:
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Contact us to book a no-obligation consultation to find out more about your potential options after a visa cancellation Australia, including a student visa cancellation, partner visa cancellation or permanent visa cancellation Australia, as well as Australian visa cancellation procedure.
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Australia’s migration laws are complex, and each case is different. There are also several terms which are defined in the migration provisions (and whose meanings may differ from their ordinary usage). We recommend that you seek professional advice if you are affected by a visa cancellation Australia, including a student visa cancellation, partner visa cancellation or permanent visa cancellation Australia, as well as Australian visa cancellation procedure, as being fully informed will give you the best chance of achieving a successful resolution to your case. A migration professional can help you to do this.
For up to date advice on a visa cancellation Australia and what you should do if your visa is cancelled, including a partner visa cancellation or permanent visa cancellation Australia, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.