Visa cancellations and refusals is an extremely complex area. There are many and various cancellation powers available to the Minister and Department. Which power and process used depends on the type of Visa being considered for cancellation. The circumstances leading to cancellation is also relevant.
In most cases if a Visa is cancelled the Visa holder can apply for a review of the decision and seek to have a Visa reinstated. There are often very short time frames to lodge an appeal for review. It is vital that you seek legal advice if this is happening to you as it may be the only opportunity you will have to challenge the decision.
Please find below some further information in regards to Visa Cancellations and Refusals:
What if my Visa is cancelled?
Notice of Intention to consider cancellation.
My visa has been cancelled without notice.
Failure to comply with conditions.
False documents and incorrect information.
The Appeals process
Appeals to Migration Review Tribunal
Appeals to the Administrative Appeals tribunal
What if my Visa is cancelled?
If you have been advised that your Visa has been cancelled must take immediate action.
If you intend to leave Australia as a result of the cancellation you needed to immediately go to the Department of Immigration & Citizenship to arrange for a bridging Visa. If you do not obtain a bridging Visa and stay in Australia for more than 28 days after the date of cancellation you face being banned from re-entering Australia for three years.
If you wish to stay in Australia you must apply to appeal the cancellation to the Migration Review Tribunal, Administrative Appeals Tribunal or Federal Courts depending upon the type of Visa you held. There are limited timeframes in which the appeal must be lodged.
If you have received a decision cancelling your Visa, or a notice of intention to consider cancellation, you need to contact us immediately.
Notice of Intention to Consider Cancellation
Under the legislation of the Department has the power to cancel visas for a number of reasons. In most circumstances the Department is first required to send a notice of intention to consider cancellation. The notice gives the Visa holder reasons why cancellation is being considered. The Visa holder then has the opportunity to submit why cancellation should not occur.
If the notice is ignored the Department can simply make a decision without any input from you. If you receive notice you should treat it with the urgency and seek immediate legal advice.
If an appropriate response can be given to the notice cancellation may be avoided.
Once the decision to cancel a Visa is made you may be forced to either leave Australia or appeal the decision.
If you receive notice of intention to consider cancellation contact us immediately.
My Visa has been cancelled without any notice
If the Minister is satisfied that grounds exist for cancelling a Visa, and the Visa holder is outside of Australia, the Visa may be cancelled without notice.
This cancellation is made under section 128. Often the first time the Visa holder is aware of the cancellation is when they are turned back at the airport when attempting to re-enter Australia. The Visa holder has only 28 days from the date of cancellation to make written submissions to the Minister to overturn the decision and reinstate the Visa.
Failure to comply with conditions
Section 116 of the act creates a general power to cancel Visa if:
the grounds on which the Visa was granted no longer exists; or
you have not complied with the conditions of your Visa.
If the Department intends to exercise this power they will first issue a notice of intention to consider cancellation. You will be given an opportunity to respond.
Often the legislation requires mandatory cancellation. For example where a student is found to be working and not studying.
Where there has been failure by the Department to follow procedure there may be grounds to overturn the cancellation by application to the Migration from Review Tribunal, or the Federal Magistrates Court.
False Documents or Incorrect Information
If you have provided false information or false documents in your Visa application the Minister may cancel the Visa under section 109. The power to cancel the Visa arises when the Department is of the opinion that you:
Incorrectly answered or did not answer questions on your application or passenger card.
Provided false documents in your application.
Failed to advice the Department that your information or circumstances had changed, and the information in your application was no longer correct at the time it was provided.
You may not have known you were using false documents or providing incorrect information. This does not mean your Visa will not be cancelled. It is a relevant consideration when the decision is reviewed.
If you are convicted of a criminal offence when you on any type visa you face having your Visa cancelled on the basis you are a person of bad character. It does not matter if you have received permanent residency.
If you are thought to be a danger to the Australian community the Department to consider using section 501 on the legislation to cancel the Visa.
You will first be given a notice warning that the government is considering cancellation and requiring you to respond. Your response must be considered before a decision to either cancel or not cancel is made. The decision not to cancel your Visa can be reviewed if you commit further crimes.
A relevant consideration cancellation is the severity of the crime. Conviction on a single severe crime will be enough for the government to cancel the Visa. For minor offences repeated convictions can also lead to cancellation.
If the decision to cancel is made while the Visa holder is imprisoned they will be taken to a deportation centre at the end of their sentence. Cancellation can only be challenged in an appropriate tribunal or court.
If you receive notice of intention to consider cancellation or have committed a crime whilst on a Visa please immediately contact us.
The Appeals Process
Most appeals from a decision normally made to a tribunal. Depending on the type of visa being considered this will be to the Migration Review Tribunal, Refugee Review Tribunal or Administrative Appeal Tribunal.
If you are not successful at the tribunal stage further appeals may be available to the Federal Courts of Australia. Appeals to courts are not available in all cases. You must first be able to establish sufficient errors in the tribunal decision.
If all appeals are exhausted through the courts is possible to make an application to the Minister for Immigration and Citizenship to overturn a decision. The Minister publishes guidelines under which he will exercise his public interest powers. If the guidelines are not met the Minister will not intervene. There is no review available to the Ministers decision.
Appeals to the Migration Review Tribunal
The MRT is the Tribunal set up to review decisions a Visa has been refused or cancelled on its own merits. It is the last time you can present fresh evidence to support your application, which was not seen or considered by the decision maker.
Fresh evidence cannot be considered in any subsequent appeal. It is vital that you obtain legal advice before putting your case to the MRT. This is both to give you the best chance of having the decision overturned, and to ensure proper evidence is available if your matter goes to a subsequent appeal.
The strict limits in which you can make an appeal to the MRT. It is vitally important you obtain legal advice as soon as you receive notification of a refusal decision or a cancellation to ensure the appeal is lodged within time and to allow proper preparation of the appeal.
If you miss the time limit set by the MRT the only ground you can challenge a decision is if the department has made a procedural error.
Once an appeal is filed you will be issued with a bridging Visa in similar terms to your original Visa.
This is an extremely complex area. You will need to seek legal advice as soon as a Visa is cancelled or application refused.
Appeals to the Administrative Appeals Tribunal
The AAT review’s decision by numerous government departments. It has a limited jurisdiction to consider decisions including:
decisions in relation to protection visas
decisions to cancel a business visa
decisions to grant or cancel Visa on character grounds
Unlike the MRT it is usually expected that lawyers conduct applications for review before the AAT.