Ease-a visa cancellation
The process of obtaining a visa is lengthy, as is the process of cancellation. Having your visa cancelled, either by request or involuntarily by the Department of Immigration and Citizenship, is serious as it can mean detention and removal from Australia. So what does it mean when your visa is cancelled?
“This is the situation”
Your visa may be cancelled if:
You fail to comply with the conditions of your visa, such as:
- working while holding a visitor visa
- not meeting course requirements while holding a student visa
- holding an ETA (electronic travel authority) and being found to have criminal convictions.
The circumstances under which your visa was granted no longer exist, such as:
- you may have held a Partner / Prospective Marriage temporary visa but the relationship with your Australian sponsor has broken down
- you may have held a long stay business visa but you no longer work for this sponsor
You fail the character test because:
- you have a substantial criminal record
- you either have, or have had, an association with an individual, group or organisation suspected of having been, or being, involved in criminal conduct
- having regard to your past and present criminal / general conduct, you are found not to be of good character
- there is a significant risk that you would engage in criminal conduct in Australia, harass, molest, intimidate or stalk another person in Australia, vilify a segment of the Australian community, or incite discord in the Australian community or in a segment of that community or represent a danger to the Australian community or a segment of that community.
There are other prescribed circumstances, such as:
- where you have provided incorrect information or bogus documents with an application form including answers on passenger cards
- where as the holder of a visa your presence in Australia would be contrary to Australia’s foreign policy interests.
Consequences of visa cancellation
If your visa is cancelled for failure to comply with visa conditions you may experience difficulty in obtaining a visa if you attempt to return to Australia.
If your visa is cancelled because you fail the character test on the grounds of either a substantial criminal record, or past and present criminal conduct, you will be permanently excluded from Australia.
If the visa holder is outside Australia when the visa is cancelled, it can no longer be uses to travel and enter Australia. If the visa holder wants to return to Australia, they will have to apply for another visa and the application will be assessed against the legislation and policy that are current at that time.
It is important that you are outside Australia when your visa is cancelled. This is because there are consequences for people whose visas are cancelled while they are in Australia. These include legal restrictions on the ability to apply, in Australia, for other visas.
Once a visa is cancelled, a person who is in Australia would become an ‘unlawful non-citizen’ and may be subject to detention and removal from Australia.
Where the decision to cancel a visa on character grounds is made by the Minister personally, you have no right of appeal to the Administrative Appeals Tribunal (AAT). Where a delegate of the Minister (usually an officer of the department) cancels the visa and you are in Australia you will, in most cases, have a right to have the decision reviewed by the MRT (Migration Review Tribunal) or the AAT in certain circumstances.
If you are notified of a decision to cancel a visa you will be advised of your right to seek a review of the decision. Strict time limits apply on appeals to the MRT and the AAT. If you decide to seek a review of the decision you must apply to the relevant review body within a specified period of being notified of the decision.
In cases where there is no power for the MRT or the AAT to review the merits of a case, you may seek judicial review of the legality of the decision.