Is your Visa being cancelled? What can you do?
Visa Cancellation – Know What You Can Do Today.
The Department of Home Affairs’ Annual Report 2017-2018 revealed that 57,440 Visas were cancelled during the prior financial year, of which 900 were on character grounds.
To be clear, the cancellation of a Visa is a very serious matter. If a Visa is cancelled, a person becomes an ‘unlawful non-citizen’ and may be placed into immigration detention. He or she may be forced to leave Australia and prevented from re-entering for a specified period of time, or indefinitely. This can have a devastating effect on the Visa holder and the family and friends they leave behind.
This article explains the common grounds for cancelling a Visa and what action may be taken when a Visa holder is at risk. If you or somebody you know is at risk, or has had their Visa cancelled, it is important to obtain urgent legal advice.
Grounds for cancelling a Visa
These generally fall within three categories:
- Breach of a condition attached to the Visa. The conditions applicable to each Visa type are contained in the grant notice and fact sheet issued when a Visa is granted. Ongoing compliance is essential to avoid the risk of cancellation.
Non-compliance issues vary, depending on the Visa type and the circumstances. Common examples include the failure of a student to attend university and complete the required study load; the breakdown of a relationship which facilitated the grant of a partner Visa; or ending an employment relationship with a sponsor without making an application for a further visa within the required timeframe.
- Fraudulent conduct/information. The Minister for Immigration becomes aware that false or misleading information or bogus documents were provided as part of a Visa application.
- Failure to meet the character test. A Visa holder no longer meets the character grounds required to hold an Australian Visa. Essentially, this will occur upon discovering that a Visa holder:
- has a substantial criminal record;
- has been convicted of an immigration detention offence;
- presents a significant risk of engaging in criminal conduct;
- belongs to, used to belong to, or is associated with a group, organisation or person involved in criminal conduct;
- represents a danger to the Australian community.
In such circumstances the person becomes an unlawful non-citizen and, unless he or she holds a protective Visa, must be placed in immigration detention until such time as a Visa is granted or the person is removed from Australia.
Removal from Australia on character grounds can make it extremely difficult for a person to obtain another Visa to re-enter the country in the future.
What can you do if you receive a Visa cancellation notice?
In most cases, the Department of Home Affairs will notify a Visa holder who is in Australia or immigration clearance, that it intends to cancel a Visa, and the Visa holder will have an opportunity to put forward a case for the Department’s consideration.
Furthermore, the Department will issue a Notice of Intention to Consider Cancellation, advising that a condition attached to the Visa has been breached and / or that the Department is considering cancelling the Visa.
If you have received a Notice you must respond within the time provided. You will need to act quickly to prepare a written response outlining all relevant matters for consideration by the Department.
In determining a case, the Department will consider matters such as:
- the grounds for cancellation;
- the degree of compliance with Visa conditions;
- the time the Visa holder has spent in Australia and his or her contribution to the community;
- the Visa holder’s criminal history, if relevant and whether he or she poses a risk to the community;
- if the cancellation relates to supplying bogus documents/information, whether the Visa would have otherwise been granted;
- the degree of hardship that would be caused to the Visa holder and his or her family if the Visa was cancelled;
- the cooperation, or otherwise, by the Visa holder with the Department;
- Australia’s human rights obligations.
If the Department affirms its decision to cancel the Visa, a Visa holder may have avenues of appeal available.
The rights to appeal a Visa cancellation order depend on the grounds for cancellation and the circumstances leading to the making of the order. Strict time limits apply so it is important to obtain legal advice quickly to ensure your rights are protected.
The Administrative Appeals Tribunal (AAT) deals with the review of Visa refusals and cancellations based on the merits of a decision made by the Department. The AAT is an independent body and will determine the merits of an appeal by assessing the relevant facts and circumstances.
The AAT has the power to affirm the decision to cancel the Visa, revoke or vary the decision, substitute the decision for a new one, or send the case back to the Department to make a new decision (usually with recommendations).
Understanding the AAT review process and preparing strong written submissions with evidence to support your case is essential, to ensure the best possible outcome in the circumstances.
If the decision to refuse a Visa was made personally by the Minister of Immigration on the grounds of failing to meet the character test, there is no right of appeal with the AAT however there may be grounds for judicial review with a Court. These types of proceedings involve complex questions of law and require expert advice.
If you have:
- breached a condition of your Visa;
- been accused of conduct that may bring your character into dispute;
- received notification from the Department that it intends to cancel your Visa; or
- had your Visa cancelled;
you should obtain urgent advice from an immigration expert.
Strict time limits apply for responding to a Department notice or for having a decision reviewed either by the AAT or a Court. An immigration professional can provide prompt advice and assist in presenting the best case possible in the circumstances.
If you or someone you know wants more information or needs help or advice, please contact our office on 02 9299 5815 or email [email protected] to discuss the matter with our friendly and professional team.