In this page we give helpful advice and information on general australian visa cancellations if you need help or advice with Australian student visa cancellations please click here.
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 Cancellation
The 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 cancelled
If 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 Courts, 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.
Contact Us - Turner Coulson Immigration Lawyers
Cancellation under s.109 - Incorrect information or False document
The 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.
- 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.
Contact Us - Turner Coulson Immigration Lawyers
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.
Contact Us - Turner Coulson Immigration Lawyers
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.
Contact Us - Turner Coulson Immigration Lawyers
Cancellation under section 501 - Character Grounds
“Substantial Criminal Record”
Section 501 of the Migration Act 1958 provides that a visa may be refused or cancelled if a person is found by the Department of Immigration & Citizenship not to pass the “Character Test”.
Section 501 then provides that a person fails the ‘character test’ if -
- They have a substantial criminal record (sentenced to 12 months in prison or more).
- Their past and present conduct indicates they are not a person of good character.
- Are likely to engage in criminal conduct, to vilify part of the Australian community or they represent a danger to the Australian community.
If you have a notice of intention to consider cancellation your visa under section 501, then it is essential that you get specialist immigration legal advice and assistance if you are to avoid having your visa cancelled or to be successful in having your visa reinstated.
If your Australian visa is cancelled under section 501 of the Migration Act 1958 you will be taken into immigration detention until any appeals against the visa cancellation are heard.
It is therefore extremely important to receive proper legal advice as soon as you receive the notice of intention to cancel your visa so that you have the best chance of avoiding actual cancellation of your visa, and of being taken into detention, during your appeal or while you make arrangements to depart Australia.
Contact Us - Turner Coulson Immigration Lawyers
Offences established by the Migration Act 1958
It is important to be aware that the Migration Act 1958 also creates a number of offences, punishable by fines and/or imprisonment, that may be committed by migrants or temporary residents, which may lead to the visa cancellation process, or court proceedings, being commenced against a visa holder. Examples of these offences are –
- Working without permission to work or working in excess of a work limitation - e.g. a student visa holder working in excess of 20 hours per week.
- Arranging bogus or false marriages to obtain a visa for a person who is not otherwise eligible to be granted an Australian spouse visa.
- Providing immigration advice for a fee where the person is not a registered Australian migration agent.
- People smuggling or harbouring illegal immigrants.
If an offence under the Migration Act 1958 is committed, charges can be brought against the visa holder committing the offence for up to 5 years from the date the offence was committed.