The Department can take steps to cancel either a temporary or permanent visa that has already been granted. It’s important to obtain legal advice before such a decision is made (to ensure an appropriate response is provided), or after such a decision has been made so you can know your full review/appeal rights, and the consequences of the cancellation.
- Visa cancellations can be made under the “general” cancellation powers, or under the “charater” cancellation powers
- Certain visa cancellation decisions should first seek to be “revoked”
- Where a Delegate refuses to revoke the cancellation decision, this can then be appealed to the Tribunal
- Certain cancellation decisions made by the Minister personally cannot be appealed to the Tribunal. You may be able to seek judicial review of such a decision
- The process differs slightly when cancellation is made on the basis of character, or under the “general” cancellation provisions
- Typically this involves a visa holder being sent a “Notice of Intention to Consider Cancellation” (NOICC), and inviting them to respond
- Where mandatory cancellation provisions are engaged, the applicant will be provided notice that their visa has been cancelled and invite them to apply for revocation of the cancellation decision
- Please see our cancellation page for further details, or contact your Hannan Tew representative
- The time limits to lodge an application for review varies depending on the type of decision, and whether the person is in immigration detention
- Generally speaking, decisions to refuse / cancel a visa on the basis of character must be lodged within 9 days after the day on which you were notified of the decision, otherwise, you must lodge an application for review within 28 days after the notification of decisions
- These time limits are very strict
- An application to the Tribunal for the review of a cancellation decision on the basis of character costs $1,011
- The fee may be reduced to $100 in certain circumstances
- If the review is favourable to the applicant, the entire amount would be refunded less $100
General Visa Cancellation
Considerations in cancelling
There are general cancellation powers that may be exercised by a Delegate of the Minister for Home Affairs (Minister) or the Minister personally. Some of the more common grounds utilised include (but are not limited to) circumstances where:
- a visa was granted based (wholly or partly) on facts or circumstances that did not exist;
- a visa was granted based (wholly or partly) on facts or circumstances that are no longer the case, or no longer exists;
- a current visa holder’s application contained incorrect correct information;
- the visa holder has not complied with their visa’s condition;
- the visa holder presents a risk to an Australian individual or the community.
There are also very situation-specific circumstances where an individual’s visa may be considered for cancellation for identity, security, or custody purposes; for breaches of other legislation, or for a visa holder not having genuine intentions to comply with the requirements for their visa.
Ordinarily, if the Department believes that there are grounds for cancelling a visa, they will send the visa holder a “Notice of Intention to Consider Cancellation” (NOICC) and invite them to respond. The visa holder would need to demonstrate that the grounds do not exist, or that there are otherwise reasons for not cancelling their visa.
Where mandatory cancellation provisions are engaged, the applicant will be provided notice that their visa has been cancelled and invited to apply for revocation of the cancellation decision.
There are typically strict time frames to respond.
The time frame to respond to a NOICC varies depending on where you are at the time you are issued the NOICC.
Generally speaking, if you are in Australia you will have 5 working days to respond. If most cases, if you are outside Australia you will have 28 days to respond (depending on where the cancellation decision is being considered). This timeframe for response can be extended by 5 working days.
These time limits are set by the legislation and can’t be amended.
It may be possible to appeal the cancellation decision to the Administrative Appeals Tribunal. There are strict time frames associated with this.
For certain cancellation decisions (such as where visas are cancelled without notice to individuals outside Australia), you would first be invited to show that the cancellation should be revoked.
The Department can take steps to cancel either a temporary or permanent visa that has already been granted for reasons of character. Typically this would occur in circumstances where a person did not disclose prior offences (and the Department subsequently discover these), or where a person is convicted of offences after the visa has already been granted. We also have an article here, which outlines what happens if a visa is being considered for cancellation due to character.
Considerations in cancelling
The Department / Minister would first consider whether or not a visa holder passes the “character test”. We have an article on our website here that outlines what the character test is, and a separate article here that outlines the various considerations taken into account in deciding to cancel a visa.
This decision may be made by a Delegate of the Minister for Home Affairs (Minister) or the Minister personally.
Ordinarily, if the Department believes that there are grounds for cancelling a visa, they will send the visa holder a “Notice of Intention to Consider Cancellation” (NOICC) and invite them to respond. Where mandatory cancellation provisions are engaged, the applicant will be provided notice that their visa has been cancelled and invited to apply for revocation of the cancellation decision.
There are typically strict time frames to respond.
The time limits to apply for review with the Administrative Appeals Tribunal varies depending on the type of decision, and whether the person is in immigration detention.
Generally speaking, decisions to cancel a visa based on character must be lodged with the Tribunal within 9 days after the day on which you were notified of the decision.
These time limits are very strict.
In some cases, you would need to first apply for revocation of the cancellation decision. Where a Delegate decides not to revoke the cancellation of a visa, it may be possible to appeal the cancellation decision to the Administrative Appeals Tribunal.
The Tribunal cannot review decisions made by the Minister personally to cancel a visa (or not revoke a visa cancellation). These decisions may be appealed to the Federal Circuit and Family Court of Australia.
There are strict time frames associated with the above.
An application to the Tribunal for the review of a cancellation decision on the basis of character costs $1,011. This may be reduced to $100 in certain circumstances.
If the review is favourable to the applicant, the entire amount would be refunded less $100.
Frequently Asked Questions
Yes – the Migration Act has provisions which allow for the cancellation of both temporary and permanent visas after they have been granted. Typically they can be cancelled for reasons of “character”, or broader “general” cancellation powers (for example if bogus documents or false or misleading information was used which led to the grant of the visa, if incorrect answers were provided in the application, or if the visa holder has breached their visa conditions).
It depends why, but it is technically possible for permanent Partner visas to be cancelled. If your relationship ceases after the Partner visa is granted, then your visa would not be cancelled. However, if your relationship ceased before the grant of the permanent Partner visa, or it was discovered that your relationship was not genuine, then your permanent Partner visa could be cancelled.
In most cases, the Department will provide you with written notice that your visa has been cancelled. If your contact details have changed you may not receive this, in which case you can conduct a Visa Entitlement Verification Online (VEVO) check on yourself (see here) to see if your visa is still valid.
No. Only the Department of Home Affairs (the Department) can formally cancel your visa. If you are in Australia on an employer-sponsored work visa (such as the Temporary Skilled Shortage (TSS) Subclass 482 visa or the Skilled Employer Sponsored Regional (SESR) Subclass 494 visa and cease employment, your employer has an obligation to notify the Department that you have ceased employment with them. The Department may then take steps to cancel your visa.
The information contained here is offered for informational purposes only and does not constitute legal advice or give rise to an attorney-client relationship between you and our firm. The information: (i) must be regarded as a practical guide for general information and not a process guide for determining the specific immigration requirements of the countries covered, (ii) should not be a substitute for a more indepth analysis of applicable facts and circumstances conducted by competent professionals, and (iii) does not represent an opinion from Hannan Tew or any of its agents with regard to the laws of any of the jurisdictions concerned. The information does not guarantee the outcome or approval of any particular immigration application.
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