Australian visa cancellation – what should you do if your visa is cancelled
When an Australian visa is cancelled, this means that a visa which was previously granted by the Department ceases to exist. A visa cancellation 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.
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.
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 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 Visitor subclass 600 Visa and you apply for an onshore partner subclass 820/801 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 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.
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 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 prospective marriage subclass 300 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);
- 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 Temporary Work subclass 457 or 482 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 further information on the Genuine Temporary Entrant (GTE) requirement and student visa cancellations).
In most cases of visa cancellations, the Department is required to notify you of its intention to cancel your visa and to allow you an opportunity to respond. However, 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 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 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.
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.
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.
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.
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).
Apart from section 48, you may be restricted from applying for another visa for 3 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 3-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.
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 in 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.
Australia’s migrations 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, 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 the cancellation of an Australian visa and what you should do if your visa is cancelled, book your confidential consultation with a migration agent in Adelaide. PAX Migration Australia is a leading immigration advice service based in Adelaide.