Visa Cancellation

Have you been served by the Department of Home Affairs with a Notice of Intention to Consider Cancellation (NOICC) or a decision to cancel your substantive visa? We understand how stressful, upsetting and traumatizing this experience can be. At Visa Plan, our experienced migration lawyers can help you win, giving you another chance to stay in Australia lawfully.

 

Australian Visa Cancellation

The Department may cancel your Australian visa without prior notice in certain limited circumstances. For example, automatic visa cancellation may occur when you have accumulated a substantial criminal record, committed a sexual offence against a child, or are serving a sentence of imprisonment. It may also apply when any of the grounds under section 128 of the Migration Act are present and you are physically outside Australia.

In other cases, the Department issues a Notice of Intention to Consider Cancellation (NOICC), giving you the opportunity to respond within a set time limit, to explain why your visa should not be cancelled. This NOICC is your best opportunity to preserve your current visa before the Department cancels it. In drafting the response, you must be meticulous and strategic, as the Department will not change its mind lightly.

The Department is bound to consider matters stipulated in the relevant statutory provisions, which generally include your time spent in Australia, migration history, criminal record, contribution to the Australian community, any risks you may pose to the Australian community and whether you have provided incorrect information in your previous Australian visa applications. Visa Plan specializes in complex migration matters, such as visa cancellations, and can carefully craft the most effective response to your NOICC.

 

Section 140 Cancellation of Visa Results in Other Cancellation 

(1) A visa held by a member of the family unit of the person is also cancelled whose visa is cancelled under:

(2) The cancellation under subsection (1), (2) or (3) is revoked if:

  • A visa is cancelled under subsection (1), (2) or (3); and
  • The visa cancellation is revoked under section 131, 133F, 137L, or 137N.

 

Section 117 When a Visa May Be Cancelled 

A permanent visa cannot be cancelled under Subsection 116(1) if the holder of the visa was immigration cleared on last entering Australia.

 

Extraordinary Circumstances for Visa Cancellation

  • Emergency cancellation on security grounds
  • Cancellation of business visas
  • Automatic cancellation of student visas
  • Cancellation of regional sponsored employment visas

 

Offending Without Recording A Conviction Taken Not To Be A Consideration

OTAKE (Migration) [2022] AATA 1026 (Member: David McCulloch) 

The delegate cancelled the student visa under section 116(1)(g) on the prescribed ground for cancellation being Regulation 2.43(1)(oa) where the visa holder has been convicted of an offence under a law of the Commonwealth, a State, or Territory.

The Tribunal considers section 12(3) of the Penalties and Sentences Act 1992 (Qld) which indicates that, except as provided by the Act or any other Act, an offence without recording the conviction is taken not to be a conviction for any purpose.

The Tribunal set aside the decision under review and substituted a decision not to cancel the applicant’s Subclass 500 (Student) visa.

 

Cancellation and Notice of Intention to Consider Cancellation

Q: Can I cancel my own visa?

Many student visa holders who transition to a different visa often inquire if they can unilaterally cancel their student visa. The simple answer is No. Your action or inaction may result in cancellation that is exercised by the Department of Home Affairs, but you cannot willingly cancel your own visa.

 

Q: Can a Permanent Visa be cancelled?

Yes. Permanent visas can be cancelled, although higher thresholds may apply as compared to temporary visas.

 

Q: How often does the Department of Home Affairs cancel visas?

According to the statistics, the Department is exercising its statutory power of visa cancellations more actively than before and the number of incidents are quite notable.

 

Q: What happens when my visa is cancelled?

You would immediately be granted a Bridging visa E and lose any work rights previously attached to your visa. The BVE is only intended to allow you to remain lawfully for a very limited duration to arrange your outbound departure.

In the event of visa cancellation, section 48 imposes a bar on further visa applications in Australia, with limited exceptions. When you leave Australia, you may be subject to a 3 year ban, pursuant to Public Interest Criterion 4013, which can only be waived on compelling and compassionate grounds.

 

Q: Can I appeal the visa cancellation decision?

If you have already had your visa cancelled, there may be room for you to make a visa cancellation appeal with the AAT. As not all matters are capable of being appealed, you need to check your eligibility for review.

Due to these serious consequences, it is advisable to have a visa cancellation specialist carefully analyse whether the visa cancellation has been properly made and whether you have reasonable prospects of success on appeal. In the meantime, a well-prepared application for work rights may allow you to continue working whilst you wait for your appeal to be heard. This is important for many appellants, as it may take a long time for your matter to be decided.

 

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