Australian Visa Cancellation – Australian Immigration Lawyers

If you hold an Australian visa it is very important to understand the processes leading to possible visa cancellation, the powers under which a visa can be cancelled and the effect of visa cancellation in Australia. 

Introduction to Australian Visa CancellationThe Department of Immigration & Citizenship has, under the Migration Act 1958, various powers to cancel visas for certain prescribed reasons. The powers to cancel a visa include -

s.109: cancellation of any visa for providing bogus documents or incorrect information s.116: cancellation for, among other things, failure to comply with conditions s.134: cancellation of business skills visas s137J:automatic cancellation of student visas s.501: cancellation on character and other public interest grounds

Status if an Australian Visa is cancelledIf you have been notified that you have had your visa cancelled then you must act quickly. If you are intending to leave Australia as a result of the cancellation, you will need to go to the Department of Immigration & Citizenship to arrange the grant of a bridging visa.If you wish to stay on in Australia, you will have a limited time frame to appeal the cancellation to the Migration Review Tribunal, Administrative Appeals Tribunal or Federal Court, if eligible to do so.If you do not appeal the decision, and stay in Australia past 28 days from the date of cancellation without a bridging visa, then you also face being banned for 3 years from re-entering Australia.If you have received a decision cancelling your visa, or a notice of intention to consider cancellation, then contact us immediately as delay may mean you lose the opportunity to have your visa reinstated. 

Cancellation under s.109 - Incorrect information or False documentThe Minister for Immigration may cancel your visa if you provided false information or false or bogus documents in your visa application. The power to cancel a visa under section 109 arises when the Department of Immigration & Citizenship believes you -

Did not answer or incorrectly answered questions on your passenger card or visa application form. Did not answer or incorrectly answered questions on your passenger card or visa application form. Provided a false document or bogus document to the Department of Immigration & Citizenship. Did not advise the Department of Immigration & Citizenship that answers or information given in a

visa application, due to a change in circumstances, are no longer correct or were incorrect at the time they were provided.The fact that you did not know that the information was incorrect or the document was bogus does not mean your visa will not be cancelled but is a relevant consideration going to the decision by the Department of Immigration & Citizenship to cancel your visa or not.It is important to be aware that if your visa is cancelled, your dependent's visas are also cancelled. 

Cancellation under s.116 

Section 116 of the Migration Act 1958 creates a general power to cancel visas and provides, among others, the following grounds for cancelling a visa -

You have not complied with a condition of your visa The grounds on which the visa was granted to you no longer exist.

If the Department of Immigration & Citizenship intends to exercise its discretion to cancel an Australian visa under section 116, they must first issue a notice of intention to consider cancellation to the visa holder and give you an opportunity to respond.Section 116(3) prescribes that a visa must be cancelled in certain circumstances, for example where a student has not complied with their visa condition 8202 obligations to attend classes and achieve satisfactory academic progress.Procedural requirements for cancelling a visa under section 116 are often not followed by the Department of Immigration & Citizenship.If legislative procedure has not been followed then the cancellation of your visa may be invalid and your cancellation may be overturned by application to the Migration Review Tribunal, the Federal Magistrates Court or Federal Court. 

Cancellation of Business Visas under s.134 

The power applies to any visa class with the words 'Business Skills' as part of its visa title.The review of the cancellation of business visas are conducted by the Administrative Appeals Tribunal (AAT) and not by the Migration Review Tribunal (MRT). Immigration lawyers are usually expected to appear on behalf of clients and conduct applications for review in the Administrative Appeals Tribunal due to the formality of proceedings.