Introduction
The cancellation of a skilled visa is a significant and life-altering event for any visa holder in Australia, so it is crucial to understand the Australian visa cancellation process and the profound consequences it carries. A visa cancellation can immediately render an individual an “unlawful non-citizen,” creating a serious risk of immigration detention and removal from the country, which underscores the gravity of the situation.
Navigating the complex legal landscape following a cancellation decision from the Department of Home Affairs requires an immediate and clear understanding of the available appeal options. The most critical factor is time, as Australian immigration law imposes strict and often very short time limits for filing an appeal. This guide provides essential information on the legal pathways and strategic considerations for challenging a visa cancellation.
Grounds for Skilled Visa Cancellation
Incorrect Information & Bogus Documents
A visa can be cancelled under Section 109 of the Migration Act 1958 (Cth) if it was granted based on incorrect information. This applies if you provided false or misleading details in your visa application or on a passenger card, or if you submitted bogus documents. This ground for cancellation can be triggered even if the error was unintentional.
The Department of Home Affairs may cancel your visa for incorrect information related to various aspects of your application, including:
- Discrepancies in your stated qualifications or employment history
- The submission of fraudulent documents to support your claims
- A failure to disclose a material fact that was relevant to the visa grant
- Not notifying the Department of a change in your circumstances that makes information previously provided incorrect
If the Department suspects non-compliance, it will typically issue a Notice of Intention to Consider Cancellation (NOICC), giving you an opportunity to explain the situation.
Breaching Visa Conditions & Sponsorship Issues
Under Section 116 of the Migration Act 1958 (Cth), the Department of Home Affairs has broad powers to cancel a visa for various reasons, most commonly for non-compliance with visa conditions. For skilled visa holders, this often relates to employment and sponsorship obligations.
If your sponsoring employer withdraws their support or goes out of business, your visa will also typically be cancelled.
Common breaches that can lead to a visa cancellation decision include:
| Breach Type | Explanation |
|---|---|
| Ceasing employment | Skilled visa holders on employer-sponsored visas (e.g., Subclass 482) may have their visa cancelled if they stop working for their sponsor for more than the permitted period. |
| Working outside your role | A breach can occur if you work in an occupation besides the one specified in your nomination. |
| Failing to meet regional requirements | Visas like the Subclass 491 require holders to live and work in a designated regional area; failure to do so is grounds for cancellation. |
| Not maintaining health insurance | Some skilled visas mandate that you hold adequate health insurance for the duration of your stay in Australia. |
Additionally, a change in the circumstances that were the basis for your visa grant, such as a change in your relationship status for a partner-based visa, can also lead to cancellation under this section.
Failing the Character Test
A visa cancellation under Section 501 of the Migration Act 1958 (Cth) is a serious matter. This occurs when a visa holder fails to meet the character test. The Department may cancel your visa if it reasonably suspects you do not pass this test or if you have been sentenced to a term of imprisonment.
A person is deemed to fail the character test if they have a “substantial criminal record.” This is defined as being sentenced to a term of imprisonment of 12 months or more, which can include two or more sentences that total 12 months. It also covers situations where a person is associated with criminal organisations or is otherwise considered a risk to the Australian community, which is why it’s important to know how to appeal a visa cancellation on Section 501 character grounds.
Under Section 501, a visa cancellation can be either discretionary or mandatory:
- A mandatory cancellation occurs automatically by law if you fail the character test on certain grounds, such as having a substantial criminal record while in Australia
- In these cases, you may not receive a NOICC before the decision is made
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Immediate Steps After Receiving a Cancellation Notice
Responding to a NOICC
In most situations, before a visa is cancelled, the Department of Home Affairs will issue a NOICC. This critical document outlines the grounds for potential cancellation and provides your first and best opportunity to prevent it.
Receiving a NOICC triggers a time-sensitive period where you can present your case. A comprehensive and well-represented response is essential to address the Department’s concerns. Your submission should:
- Directly address each concern raised by the Department
- Correct any factual errors
- Provide strong arguments for why your visa should not be cancelled
- Include supporting evidence such as:
- Explanations for any alleged breach of visa conditions
- Character references from employers or community leaders
- Evidence of your ties to the Australian community
- Documentation that clarifies any incorrect information
The timeframe to respond to a NOICC is strict and varies depending on the reason for the potential visa cancellation. For example, a response may be required within 5 working days for some general cancellations or up to 28 days for character-related matters.
A detailed and persuasive response can lead the Department to decide against cancelling your visa, making a formal appeal unnecessary.
Strict Appeal Deadlines & Why They Matter
If the Department of Home Affairs proceeds with the visa cancellation, you may have the right to have the decision reviewed by the Administrative Review Tribunal (ART). It is crucial to understand that the time limits to lodge an application for review are strict, unforgiving, and cannot be extended.
Missing a deadline will result in the permanent loss of your right to appeal the cancellation decision. The window to act is often very short and depends on the specific grounds for the visa cancellation. You must lodge your appeal within the specified timeframe, which varies significantly:
| Timeframe | Applicable Circumstance |
|---|---|
| 9 days | For most visa cancellations on character grounds under Section 501 of the Migration Act 1958 (Cth) if you are in Australia. |
| 7 to 28 days | For other general cancellations, depending on the specific circumstances and whether you are in immigration detention. |
Because these time limits are rigorously enforced, it is vital to seek legal advice and act immediately upon being notified of the decision to cancel your visa. This prompt action ensures you do not forfeit your opportunity to have the cancellation decision reviewed.
Primary Appeal: Merits Review at the ART
The ART Application Process & What to Expect
Lodging an application for review with the ART is the most critical first step after receiving a visa cancellation decision. The process must be initiated within strict time limits, which are not extendable for migration matters.
The easiest method for lodging an appeal is online via the ART’s website, which requires completing the correct forms and paying the application fee. The timeframes for lodging an appeal vary depending on the reason for the cancellation decision and your location. It is crucial to check your decision letter carefully for the specific deadline.
Time limits for different cancellation types include:
| Grounds for Cancellation | Recommended Evidence |
|---|---|
| Incorrect Information (Section 109) | Evidence demonstrating a genuine mistake, such as statutory declarations explaining the error and documents that support the correct information. |
| General Grounds (Section 116) | Evidence showing compliance with visa conditions, character references, and documentation that directly addresses the specific reason for the cancellation. |
| Character Grounds (Section 501) | Extensive evidence of rehabilitation and low risk to the Australian community, including independent psychological reports, full court sentencing transcripts, and certificates from completed rehabilitation programs. |
Regarding fees, the application fee for most migration visa reviews is currently $3,496, though this is subject to change. A 50% fee reduction may be available if you can demonstrate severe financial hardship. For character-related cancellations under section 501 of the Migration Act 1958 (Cth), the fee is lower.
Once your application is lodged, the ART will schedule a hearing, and it is helpful to follow a step-by-step guide to the Administrative Review Tribunal hearing to prepare. This hearing is an opportunity to present oral evidence and arguments to a Tribunal Member and is less formal than a court proceeding. Hearings can be conducted in several ways:
- In person
- By telephone
- Via video link
Additionally, the ART can arrange for an interpreter free of charge if required.
Gathering Evidence & Building Your Case for the ART
A successful appeal at the ART depends on a strong, well-prepared case supported by compelling evidence. The ART conducts a “merits review,” meaning it takes a fresh look at the facts and can consider new evidence that was not available to the Department of Home Affairs. Your submission should directly address each reason for the visa cancellation.
The type of evidence required will depend on the specific grounds for the cancellation of your visa. It is essential to gather documents that are relevant to your situation.
For different cancellation grounds, you should provide:
- For incorrect information (Section 109): Evidence that demonstrates a genuine mistake was made, such as:
- Statutory declarations explaining the error
- Documents that support the correct information
- For general grounds (Section 116): Evidence showing:
- Compliance with visa conditions
- Character references
- Documentation that directly addresses the specific reason for the cancellation decision
- For character grounds (Section 501): Extensive evidence of rehabilitation and low risk to the Australian community, including:
- Independent psychological reports
- Full transcripts of court sentencing remarks
- Certificates from completed rehabilitation programs
In all cases, it is beneficial to provide evidence of your strong ties to Australia. This includes:
- Letters of support from family, friends, and employers
- Proof of community involvement
- Evidence of stable employment
All documents not in English must be submitted with a certified translation.
Potential Outcomes of an ART Review
After the hearing, the ART will decide on your case. The Tribunal Member has the authority to make one of several findings, each with different consequences for the visa holder. A successful outcome, such as a “set aside” or “remit” decision, typically results in a 50% refund of the application fee paid.
The ART can make the following decisions:
| Decision | Meaning & Implication |
|---|---|
| Affirm | The Tribunal agrees with the Department’s decision to cancel the visa. The cancellation remains in effect. |
| Vary | The Tribunal changes the Department’s original decision in some way. |
| Set Aside | The Tribunal overturns the Department’s decision to cancel your visa, which may result in its reinstatement. |
| Remit | The Tribunal sends the case back to the Department of Home Affairs with instructions to reconsider the decision based on the Tribunal’s findings. |
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Advanced Appeal Options Beyond the ART
Pursuing Judicial Review in the Federal Courts
If an appeal to the ART is unsuccessful, you may have the option to seek a judicial review in the Federal Circuit and Family Court of Australia (FCFCoA). This process differs fundamentally from a merits review, as the court’s role is strictly limited to determining if a legal error occurred in the ART’s decision-making process.
The court does not re-evaluate the facts of your case or consider new evidence. Instead, an application for judicial review must be lodged within 35 days of the ART’s decision, and this time limit is strictly enforced.
For a successful judicial review, you must demonstrate that a “jurisdictional error” occurred, which can include situations where the decision-maker:
- Misinterpreted or misapplied the law
- Failed to follow fair procedures, such as not giving you an opportunity to respond to adverse information
- Did not consider relevant information or considered irrelevant factors
- Decided that was irrational or illogical
If the court finds that a jurisdictional error was made, it may invalidate the ART’s decision and send the matter back to the Tribunal for reconsideration. However, it’s important to note that the court itself does not have the power to reinstate your visa or grant a new one.
Seeking Ministerial Intervention as a Final Resort
Ministerial Intervention represents a final resort available only after all other legal avenues, including judicial review, have been exhausted. This is a personal, discretionary power held by the Minister for Home Affairs, who is not legally obligated to consider or intervene in any case.
The success rate for these requests is very low. Following new Ministerial Instructions issued in September 2025, the process is no longer based on subjective assessments of “unique and exceptional circumstances.” Instead, a request will only be referred to the Minister for personal consideration if it meets strict, objective criteria set out in the instructions.
The Minister may choose to intervene if they believe it is in the “public interest” to do so. A request will only proceed if it meets one of the specific referral criteria, which include cases where the applicant:
- First entered Australia as a minor and has lived in Australia for at least 50% of their life.
- Has skills in a specified skilled occupation and is currently employed in that role.
Managing Your Visa Status During the Appeal Process
Understanding Bridging Visa Entitlements
When a skilled visa is cancelled while you are in Australia, your legal status immediately changes, and you become an unlawful non-citizen. This carries significant consequences, including the risk of being placed in immigration detention and removed from the country.
The cancellation of your main visa also means that any other visas you hold, including any bridging visas, will typically be cancelled as well. To remain lawfully in Australia during the appeal process, you must obtain a new visa to regularise your status.
If you are eligible, you will need to apply for a Bridging Visa E (BVE) to remain lawful while you resolve your case or arrange to leave. Lodging a valid appeal with the ART often grants a BVE, which answers the question ofcan I stay in Australia during a visa appeal on a bridging visa while your case is reviewed.
It is important to understand that a BVE comes with restrictive conditions, which can impact your daily life. These conditions often include:
| BVE Condition | Explanation |
|---|---|
| Work restrictions | A BVE usually does not include work rights. You may need to apply for them separately by demonstrating financial hardship. |
| Travel limitations | You cannot re-enter Australia if you leave the country while on a BVE. |
| Reporting obligations | You may be required to report to the Department of Home Affairs at regular intervals. |
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Conclusion
Appealing a skilled visa cancellation in Australia is a complex and time-sensitive process, requiring a strategic response to grounds ranging from character issues to non-compliance with visa conditions. From the initial merits review at the ART to potential judicial reviews, a successful outcome depends on meeting strict deadlines and presenting a thoroughly prepared case.
Given the significant consequences and legal complexities involved, navigating this process alone is not advisable. For trusted experiencedise and specialised services tailored to your needs, contact Moya Migration Law’s skilled visa cancellation lawyers today to secure your future and achieve peace of mind.
