Understanding Australian Visa Cancellation Process & Your Rights When Your Visa Is Cancelled

Introduction

An Australian visa cancellation is a significant action taken by the Department of Home Affairs (DOHA), under the Migration Act 1958 (Cth), which formally revokes a visa holder’s permission to remain in Australia. This decision can have serious and immediate consequences, affecting an individual’s ability to stay in Australia and their prospects for future visa applications.

For any visa holder, understanding the Australian visa cancellation process, including your rights when facing a Notice of Intention to Consider Cancellation (NOICC) or a final cancellation decision, is paramount. This guide offers crucial insights to help you comprehend this challenging aspect of immigration law and understand when to seek legal advice.

What Happens If Your Australian Visa Is Cancelled?

You Become an Unlawful Non-Citizen

When an Australian visa is cancelled, the immediate consequence for a visa holder in Australia is the loss of their lawful status. Unless the individual holds another valid visa that comes into effect, or is immediately granted a new one, they become an unlawful non-citizen. This change in status carries significant implications under the Migration Act 1958 (Cth).

A critical aspect to understand is the effect on any associated Bridging Visas. If you hold a Bridging Visa A, B, or C that was granted while your substantive visa (any visa besides a bridging visa, criminal justice visa, or enforcement visa) was still valid, this Bridging Visa will also cease to exist at the same moment your substantive visa is cancelled. This can leave you without any legal basis to remain in Australia.

In such circumstances, you might be eligible to apply for a Bridging Visa E (BVE). A BVE is a short-term, temporary visa that allows you to remain lawfully in Australia while you:

• Make arrangements to depart the country
• Finalise any outstanding immigration matters
• Pursue a review of the visa cancellation decision

It is important to note that BVEs often come with restrictive conditions, such as:

• No work rights
• No right to re-enter Australia if you leave

Furthermore, a visa cancellation typically imposes an “application bar,” which may prevent you from applying for most other types of visas while you remain in Australia, severely limiting your options to regularise your visa status from within the country.

You Face Potential Immigration Detention & Removal from Australia

A serious consequence of your Australian visa being cancelled, particularly if it results in you becoming an unlawful non-citizen, is the risk of immigration detention and subsequent removal from Australia. Under Section 189 of the Migration Act 1958 (Cth), immigration officers are required to detain a person they reasonably suspect of being an unlawful non-citizen.

Following detention, Section 198 of the Migration Act 1958 (Cth) mandates DOHA to remove an unlawful non-citizen from Australia as soon as reasonably practicable. The risk of detention and removal is particularly high if your visa was cancelled on character grounds under Section 501 of the Migration Act 1958 (Cth).

Individuals whose visas are cancelled on character grounds while they are serving a prison sentence will typically be transferred to an immigration detention facility upon completion of their sentence to await removal, unless their visa cancellation decision is revoked, or they are granted another visa.

How Should You Respond to a Notice of Intention to Consider Cancellation?

Understand a Notice of Intention to Consider Cancellation of Your Visa

A NOICC is a formal-written communication from DOHA. This critical document informs a visa holder that DOHA is considering the cancellation of their Australian visa.

The NOICC serves several key purposes:

• It outlines the specific grounds upon which the visa cancellation is being contemplated
• It details the legislative provisions of the Migration Act 1958 (Cth) that are relevant
• It provides the information DOHA currently holds that has led to this consideration
• It formally invites the visa holder to provide a response and present reasons why their visa should not be cancelled

The issuance of a NOICC is a fundamental aspect of procedural fairness in the Australian immigration system, as it provides the visa holder with an opportunity to be heard before a potentially adverse decision is made about their visa status.

It is important to understand that receiving a NOICC does not mean your visa has already been cancelled; rather, it is a preliminary notice indicating that cancellation is under active consideration.

However, there are specific situations where an Australian visa might be cancelled without the prior issuance of a NOICC. These exceptions can include:

• When the visa holder is outside Australia at the time of the decision
• In certain circumstances involving visa cancellation on character grounds
• If the Minister for Home Affairs personally decides to cancel the visa
• For some visa cancellations that occur during immigration clearance, for instance, because of biosecurity contraventions, which may follow an expedited process with limited opportunity for a detailed response
• In cases of mandatory visa cancellation, such as those under section 501 of the Migration Act 1958 (Cth) due to serious criminal convictions, where the cancellation may occur without prior notice

Submit Your Response to the NOICC to Defend Your Visa

Responding to a NOICC is a critical right and represents arguably the most crucial stage in defending against a discretionary Australian visa cancellation. This response is the primary opportunity for the visa holder to directly address DOHA’ concerns, correct any misunderstandings, provide countervailing evidence, and present compelling arguments as to why their visa should not be cancelled.

Indeed, a well-prepared response is often the best chance to prevent the cancellation of your visa.

The NOICC will specify a period within which you must respond, and this timeframe can vary:

• For those in Australia, the response period is typically five working days
• For those outside Australia, it may be 28 days, sometimes with the possibility of an extension
• In other cases, the period can be as short as nine days or up to 28 calendar days
• For character-related matters, specific timeframes like 14 days to address the character test and 28 days to argue against cancellation may apply

It is crucial to adhere to these strict time limits, as failure to respond, or submitting an inadequate response, usually means DOHA will make its decision based solely on the information it already possesses. You can request an extension if needed, and this should be done as soon as you realise you require more time.

Your written response, which must be in English or accompanied by an accredited translation, should be comprehensive and tailored to the specific grounds outlined in the NOICC. It should:

• Address every point, allegation, or concern raised by DOHA
• Provide detailed explanations for your circumstances
• Correct any factual errors or misunderstandings in the information held by DOHA
• Include strong evidence to refute DOHA’s claims or to support your assertions
• Present compelling reasons and legal arguments as to why your visa should not be cancelled

Additionally, your response should detail any mitigating factors, such as:

• The strength of your ties to Australia, including family, employment, and community involvement
• Positive contributions you have made to the Australian community
• The potential hardship that visa cancellation would cause to you and your family members, particularly any Australian citizen or permanent resident children
• Any compassionate circumstances relevant to your case
• Evidence of workplace exploitation if it is relevant to an alleged breach of work-related visa conditions

Given the complexity of migration law and the serious consequences of an Australian visa cancellation, it is highly recommended to seek professional legal or migration advice immediately upon receiving a NOICC. An experienced advisor can help you understand the specific legal grounds, prepare a robust and effective submission, gather necessary supporting documentation, and ensure all relevant arguments and mitigating factors are presented persuasively and within the prescribed deadline.

After the response period has concluded, a delegate from DOHA will review all the information, including the initial reasons for considering cancellation, your response, and any evidence provided, before deciding on whether a ground for cancellation exists and if, in their discretion (unless mandatory), the visa should be cancelled.

What are the Common Reasons Your Australian Visa May Be Cancelled

You Failed the Character Test & Criminal Behaviour

One of the significant reasons for an Australian visa cancellation is failing the “Character Test” as outlined in Section 501 of the Migration Act 1958 (Cth). The Australian government prioritises the safety and good order of the Australian community, and this test is a key measure to ensure visa holders meet acceptable standards of character.

A person may fail the character test, potentially leading to visa cancellation, under several circumstances. These include, but are not limited to:

• Having a “substantial criminal record,” specifically defined in the Migration Act 1958 (Cth). It includes situations where a person has been sentenced to death, imprisonment for life, or a term of imprisonment of 12 months or more. It’s important to note that this refers to the sentence imposed, not necessarily the time served.
• Being convicted of, having a charge proven for, or being found guilty of one or more sexually based offences involving a child, whether in Australia or overseas.
• Being reasonably suspected of associating with a person, group, or organisation involved in criminal conduct.
• Having past and present criminal or general conduct that indicates the person is not of good character.
• If there is a risk that the person would engage in criminal conduct in Australia, harass, vilify, incite discord, or represent a danger to the Australian community or a segment of it.

Ministerial Directions, such as Direction No. 110, provide guidance to decision-makers when assessing character. These directions outline primary considerations, with the protection of the Australian community from criminal or other serious conduct being given the greatest weight.

Other factors considered include:

• Any engagement in family violence
• The strength of ties to Australia
• The best interests of minor children in Australia
• The expectations of the Australian community

A visa cancellation on character grounds can have severe consequences, including immigration detention and removal from Australia.

You Breached Your Visa Conditions or Providing Incorrect Information

Another common pathway to an Australian visa cancellation is breaching the conditions attached to your visa or providing incorrect, false, or misleading information to DOHA. These grounds often fall under Section 116 of the Migration Act 1958 (Cth), which provides general powers to cancel a visa.

Every Australian visa comes with specific conditions that the visa holder must adhere to. Failure to comply with these conditions can be a reason for DOHA to consider cancelling your visa.

Examples of such breaches include:

• Work-related breaches: Many visas have conditions limiting work rights, such as the number of hours permitted, the type of work, or the employer. Working in breach of these conditions can lead to visa cancellation.
• Study-related breaches (Student Visas): Student visa holders must comply with conditions related to their enrolment, course progress, and attendance. For instance, not being enrolled in a registered course or having unapproved gaps between courses can be grounds for cancellation.
• Failing to notify changes: Not informing DOHA about changes in your circumstances, such as a change of address, can also be considered a breach.

Providing incorrect information or fraudulent documents at any stage of your visa application process or in subsequent dealings with DOHA is taken very seriously.

This can include:

• Submitting false or misleading information in your visa application form
• Providing bogus documents to support your claims
• Failing to declare relevant information or providing incorrect answers on an incoming passenger card

If a visa was granted based on a fact or circumstance that no longer exists or was found to be incorrect, this can also be a ground for cancellation. For example, if a partner visa was granted based on a relationship that has since ended, the visa may be considered for cancellation.

It is crucial for visa holders to understand and comply with their visa conditions, which can be checked using the Visa Entitlement Verification Online (VEVO) system.

Identify Mandatory Visa Cancellation Circumstances

In certain specific situations, the Migration Act 1958 (Cth) requires the Minister or their delegate to cancel a visa. This is known as mandatory visa cancellation, and in these instances, there is no discretion at the initial stage of the cancellation decision.

The most common circumstances for mandatory cancellation arise under Section 501(3A) of the Migration Act 1958 (Cth) and relate to serious character concerns, specifically criminal sentencing.

An Australian visa must be cancelled if the visa holder:

• Is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against an Australian law (or a law of a foreign country in some cases); AND
• Has been sentenced to death, imprisonment for life, or a total period of imprisonment of 12 months or more. The “12 months” refers to the head sentence imposed by the court, not necessarily the non-parole period or time actually served.
• Has been convicted of, had a charge proven for, or been found guilty of a sexually based crime involving a child, by a court in Australia or a foreign country, and is serving a sentence of imprisonment.

When a mandatory cancellation occurs, the visa holder is notified of the decision. While the initial cancellation is automatic, the law provides an opportunity for the individual to make representations arguing why the cancellation decision should be revoked.

Typically, the former visa holder has 28 days from receiving the cancellation notice to provide these reasons to DOHA. This revocation request is a critical step, as a successful outcome may be the only way to retain the visa and avoid removal from Australia.

What Rights and Protections Do You Have During the Australian Visa Cancellation Process?

The Right to Natural Justice & to Be Informed About Your Visa Cancellation

A fundamental principle in Australian migration law is natural justice, also known as procedural fairness. This principle generally ensures that if your visa is being considered for cancellation, you are entitled to be informed about the case against you and an opportunity to present your side before a decision is made.

For visa holders in Australia, this is typically facilitated through the NOICC process. The NOICC is a critical document that:

• Outlines the specific reasons or grounds for the potential visa cancellation
• Details the legislative provisions of the Migration Act 1958 (Cth) being considered
• Summarises the information DOHA holds regarding your case
• Formally invites you to provide a response and submit reasons why your Australian visa should not be cancelled

This right to be heard allows you to submit a written statement, provide evidence, or, in some instances, attend an interview to support your case.

However, it’s important to be aware that the full extent of procedural fairness, including a detailed NOICC, is not guaranteed in every scenario. Exceptions where the process might be expedited, or notification requirements differ can include:

• Cancellations that occur during immigration clearance, for example, due to biosecurity contraventions
• Instances where the visa holder is outside Australia at the time of the decision
• If the Minister for Home Affairs personally decides to cancel the visa
• Certain character-related visa cancellations, where prior notification may not be required

The Right to Access Legal Advice & Representation

Given the complexity of Australian immigration law and the serious consequences of a visa cancellation, you are entitled to seek legal advice and representation. While you are entitled to represent yourself in dealings with DOHA and before review bodies like the Administrative Review Tribunal (ART), the detailed nature of the law, evidentiary requirements, and the need for persuasive legal arguments can make self-representation challenging.

Several avenues are available for professional assistance:

• Registered Migration Agents: These professionals are registered with the Office of the Migration Agents Registration Authority (OMARA) and possess specialised knowledge of migration legislation and policy. They can assist in preparing responses to a NOICC, lodging revocation requests, and representing you in ART reviews.
• Immigration Lawyers: Lawyers, particularly those accredited as specialists in immigration law, can provide expert legal advice and representation, especially in complex cancellation cases or if matters proceed to court.
• Legal Aid Commissions: State and Territory Legal Aid Commissions may offer free or low-cost legal services to eligible individuals, particularly for serious matters such as character cancellations under Section 501 of the Migration Act 1958 (Cth). Eligibility often depends on financial means and the merits of the case.
• Community Legal Centres: Various Community Legal Centres (CLCs) across Australia specialise in migration law and may offer free advice and assistance to vulnerable clients facing visa cancellation.

It is highly recommended to engage with a legal professional as soon as you receive a NOICC or become aware that your visa may be at risk. Early intervention is crucial due to the strict time limits involved in the visa cancellation process.

The Right to Special Protections in Cases of Workplace Exploitation Affecting Your Visa

Australian migration policy acknowledges that temporary migrant workers can be vulnerable to workplace exploitation. Specific protections are in place to encourage individuals to report such exploitation without the automatic fear of their visa being cancelled due to related breaches of work conditions.

DOHA may choose not to cancel your visa for non-compliance with a work-related visa condition if there is credible evidence that you have been subjected to workplace exploitation. This protection is significantly strengthened if the exploitation is certified by a relevant participating government agency or an accredited non-government third party.

For this “will not cancel” protection to generally apply, several conditions usually need to be met:

• You must have relevant certification regarding the workplace exploitation
• You need to commit in writing to seeking a resolution for the exploitation in a timely manner
• You must acknowledge in writing your awareness of visa conditions and your commitment to comply with them in the future
• There should be no other grounds for cancelling your visa (such as character, health, or fraud concerns)
• The Minister must be satisfied that you will comply with the purpose of your visa, going forward

This specific protection can generally only be applied once for a particular visa. Even if not all these stringent requirements are met, evidence of workplace exploitation remains a relevant and important consideration for DOHA when deciding whether to exercise discretion to cancel a visa.

It is important to remember that employers cannot cancel your visa; only DOHA or the Australian Border Force has this power. These provisions aim to empower visa holders to come forward and assert their workplace rights. Similarly, if your visa was granted based on paying for sponsorship, DOHA may not cancel your visa if you are a victim of exploitation, human trafficking, or slavery and provide relevant evidence.

What Are Your Options for Appealing an Australian Visa Cancellation Decision?

Request a Merits Review by the ART for Your Cancelled Visa

If DOHA cancels your Australian visa, one primary avenue to challenge this decision is by seeking a merits review from the ART. The ART, which has succeeded the Administrative Appeals Tribunal (AAT) for reviewing migration decisions, examines the case afresh. It effectively steps into the shoes of the original decision-maker to reassess all facts, relevant laws like the Migration Act 1958 (Cth), and applicable policies, such as Ministerial Directions.

The ART can review various visa cancellation decisions, particularly those made by a delegate of the Minister, including:

• Cancellations on character grounds under Section 501 of the Migration Act 1958 (Cth)
• Decisions not to revoke a mandatory cancellation

When your visa is cancelled, DOHA’s decision letter will typically indicate if the decision is reviewable by the ART and who is eligible to apply. It is important to note that the ART cannot review decisions made personally by the Minister for Home Affairs.

Following its review, the ART has the power to:

• Affirm DOHA’s decision, meaning it agrees with the visa cancellation
• Vary DOHA’s decision
• Set aside DOHA’s decision and substitute a new one, for instance, deciding that the visa should not have been cancelled
• Remit the matter back to DOHA for reconsideration with specific instructions

Strict time limits govern applications to the ART. Missing these deadlines usually results in losing the right to a merits review. For example:

• Appeals against character-based visa cancellations often need to be lodged within 9 days of notification
• Appeals against general visa cancellations typically must be lodged within 28 days of notification
• Time limits for other types of cancellations can be as short as 2 days

The ART generally cannot extend these time limits, particularly for character-related or protection visa matters.

An application fee is usually payable to the ART. For most general visa decisions, the fee is approximately $3,496, with the potential for a 50% refund if the review is successful. For character-based cancellations, the standard fee is around $1,121, which may be reduced in concessional circumstances.

Pursue Judicial Review by the Courts for Your Cancelled Visa

Should a merits review by the ART be unsuccessful, or if merits review is not an available option (for example, if the Minister personally made the visa cancellation decision), the next potential step is to seek judicial review. Applications for judicial review of migration decisions are typically heard by the Federal Circuit and Family Court of Australia or the Federal Court of Australia.

Judicial review differs significantly from merits review. The court does not re-evaluate the facts or merits of your visa cancellation case to determine if the “correct or preferable” decision was made. Instead, judicial review focuses on the legality of the decision-making process. The court examines whether the decision-maker, be it DOHA or the ART, committed a “jurisdictional error.”

A jurisdictional error can occur if the decision-maker:

• Failed to comply with a mandatory procedural requirement
• Misunderstood or incorrectly applied the relevant law, such as the Migration Act 1958 (Cth)
• Decided for which there was no evidence
• Considered irrelevant considerations or failed to consider relevant ones
• Acted in bad faith or for an improper purpose
• Breached the rules of natural justice, also known as procedural fairness

If the court finds that a jurisdictional error occurred, it cannot substitute its own decision or grant an Australian visa. Instead, the court may quash (invalidate) the flawed decision and refer the matter back to the original decision-maker (DOHA or the ART) for reconsideration in accordance with the law.

The threshold for proving a jurisdictional error is high, and these proceedings can be complex and costly. Strict time limits, usually 35 days from the date of the decision being challenged, apply for lodging a judicial review application, although extensions may be granted in limited circumstances. Given the complexities, obtaining specialist legal advice is essential if considering judicial review, which is generally viewed as a last resort.

Seek Ministerial Intervention as a Last Resort for Your Australian Visa

In exceptional circumstances, after all other avenues for review of your Australian visa cancellation, such as merits review by the ART or judicial review by the courts, have been exhausted or are unavailable, you may request Ministerial intervention. The Minister for Home Affairs possesses personal discretionary powers to intervene in a case if they believe it is in the “public interest” to do so.

This power allows the Minister to grant a visa or substitute a more favourable decision, even if the visa cancellation was upheld by the ART or courts. Requests for Ministerial intervention are typically considered on humanitarian or other compelling grounds.

When submitting a request, you need to outline the exceptional circumstances of your case, which might include:

• Significant compassionate factors, such as serious medical conditions
• The best interests of any children involved, particularly Australian citizen children
• The strength of family unity and ties to the Australian community

The Minister or their delegate will assess the request. It is crucial to understand that these powers are non-compellable, meaning the Minister is not legally obligated to consider your request or to intervene. Furthermore, the Minister is not required to provide reasons for their decision.

Intervention is rare and generally reserved for unique situations where there are strong compassionate elements that warrant a departure from the usual application of migration law. A decision by the Minister in these circumstances is typically final and cannot be appealed.

What Are the Consequences If Your Australian Visa Is Cancelled?

Manage Re-Entry Bans and Plan Future Australian Visa Applications

An Australian visa cancellation frequently results in a re-entry ban, also known as an exclusion period, which can prevent you from being granted most types of Australian visas for a specified time. The standard re-entry ban is typically for three years. However, this period can be longer, or even permanent, particularly for visa cancellations related to:

• Character concerns
• Repeated non-compliance with visa conditions

DOHA will inform you in writing if a re-entry ban applies.

Re-entry bans can be imposed for several reasons, including:

• Overstaying a previous visa by more than 28 days
• Having an Australian visa cancelled due to a breach of visa conditions, such as working when not permitted
• Failing the character test as defined in the Migration Act 1958 (Cth)
• Providing false documents or misleading information in connection with a visa application

It may be possible to have a re-entry ban waived for temporary visa applications if you can demonstrate compassionate or compelling circumstances. However, the ban itself remains on your immigration record, and a new waiver request is generally needed for each subsequent temporary visa application during the exclusion period.

For permanent visa applications, your entire immigration history, including the past visa cancellation and re-entry ban, will be a significant factor in the assessment.

A visa cancellation has a lasting and often negative impact on your ability to travel to Australia or apply for future Australian visas. The cancellation becomes a permanent part of your immigration record and must be declared in all subsequent visa applications. Furthermore, an “application bar” may prevent you from applying for most other visas while you are in Australia.

Even if you apply from outside Australia after any re-entry ban has expired, the previous cancellation will still be a relevant consideration.

If your visa was cancelled on character grounds under Section 501 of the Migration Act 1958 (Cth), the consequences for future visa applications are particularly severe. You may be subject to:

• Special Return Criterion 5001 (SRC 5001), which can prevent you from being granted many types of Australian visas unless the Minister for Home Affairs personally intervenes
• Public Interest Criteria (PIC) such as PIC 4013 and PIC 4014, which can impose exclusion periods if your visa was cancelled or if you departed Australia under certain circumstances after a visa cancellation

Manage Family Members’ Visa Status After Your Visa Cancellation

The cancellation of an Australian visa does not only affect the primary visa holder; it can also have a significant “domino effect” on dependent family members. If your main visa is cancelled, the visas of family members, such as your partner and children, whose visas are linked to yours, may also be cancelled as a direct consequence.

This can lead to distressing situations, including:

• Family separation
• Profound disruption to the lives of your loved ones, especially children

The impact is particularly concerning in cases involving family violence. There have been instances where victims of family violence, who are dependents on the perpetrator’s visa, have had their visas cancelled if the primary visa holder’s visa is cancelled due to that family violence. This occurs because many temporary visas do not have provisions for dependents who are victims of family violence to secure their visa status independently if the primary visa is cancelled.

Therefore, a visa cancellation can extend beyond the individual, potentially leading to the cancellation of visas held by family members who are dependents of the primary visa holder. For example, if a primary Subclass 482 Temporary Skill Shortage (TSS) visa holder has their visa cancelled, the visa of their de facto partner who holds a subsequent TSS visa as a family member will also typically be cancelled.

Conclusion

An Australian visa cancellation is a serious matter under the Migration Act 1958 (Cth), stemming from reasons such as failing the character test, breaching visa conditions, or providing incorrect information, and involves a critical process including the NOICC. Understanding your rights to respond, access legal advice, and explore appeal avenues like the ART is vital, as a cancellation decision can lead to re-entry bans and affect future visa applications for you and your family.

Navigating the complexities of a visa cancellation requires informed action; therefore, if you are facing a potential or actual Australian visa cancellation, contact Moya Migration Law today for trusted expertise and specialised services tailored to your needs, ensuring you have the best possible support to achieve a favourable outcome.

Frequently Asked Questions (FAQ)