When Are You At Risk Of A Visa Cancellation?

When Are You At Risk Of A Visa Cancellation?

Cancelled paper

Getting your visa cancelled will be one of the worst days of your life if the Department of Home Affairs thinks you should no longer remain in Australia. There are a large number of reasons for which the DOHA may decide to cancel a person’s visa. This is a vast and complex topic. We will broadly cover the common grounds for cancellation as well as discuss what happens when these grounds for cancellation are discovered in relation to a visa holder.

Once DOHA has cancelled your visa and this occurred whilst you are in Australia you will automatically become an unlawful non citizen and be issued a Bridging Visa E. Once this cancellations occurs you will face an automatic 3 year ban to re-enter Australia for nearly all the temporary residency visa applications.

If you are in Australia when your visa gets cancelled you may appeal that decision to the AAT. Your Bridging visa E will be extended until the result of this appeal. If you are not in Australia at the time of cancelation then you have no right to appeal.

Cancellation Powers

If your visa is cancelled you will have very limited options to lodge any other visa whilst you remain in Australia.Here are the major grounds for cancellation sections:

  • s109 – Cancellation of visas based on incorrect information or bogus documents
  • s116 – Cancellation of visas on specific grounds
  • s128 – Cancellation without notice of visas of persons outside Australia and
  • s134B – Emergency cancellation on security grounds
  • s133A – Cancellation by the Minister on s109 grounds
  • s133C – Cancellation by the Minister on s116 grounds
  • s140 – “Consequential cancellation”
  • s134 – Business visa cancellation
  • s137J – Cancellation of student visas due to non compliance
  • s137Q – Cancellation of Regional Sponsored Migration Scheme (RSMS) visas (subclass 187)
  • s500A – Refusal or cancellation of temporary safe haven visas (not covered in this article)
  • s501 – Cancellation of visas due to failure of the Character test

Failure to comply (s109)

A person whose visa is cancelled under s109 has been discovered to have:

  • Provided incorrect information in application or on a passenger card
  • Given an officer a bogus document
  • Failed to notify the department of a change of circumstances
  • Failed to correct incorrect answers
  • Made any incorrect statement in response to a visa cancellation notice.

Bogus documentation is a document that:

  • purports to have been, but was not, issued in respect of the person
  • is counterfeit or has been altered by a person without authority to alter it or
  • was obtained because of a false or misleading statement, whether or not made knowingly.

Be aware that any information given that was false or misleading in applications for current or previous visas may result in the person’s current visa being at risk of being cancelled.

Cancellation of visas on specified grounds (s116)

A person whose visa has been cancelled under s116 has been discovered to:

  • Have never been entitled to hold the visa
  • No longer be entitled to hold the visa
  • Be non compliant with visa conditions
  • Have another person whose visa was granted based on the grant of their visa not comply visa conditions
  • Have submitted bogus documents or information and has not cleared immigration
  • Be a risk to community public health, safety or good order
  • Have the grant off their visa have been a contravention of the law
  • Be a non genuine student and improper conduct
  • Have used fraudulent identity
  • Provided incorrect information outside the visa application
  • Have given or received benefit was given or received for the purposes of a visa result

Minister’s personal power to cancel (s133)

The Minister may personally set aside a decision made by the AAT, former MRT or RRT, or a delegate of the Minister to cancel a visa. This happens when the Minister considers that the grounds for cancellation exist, the visa holder does not satisfy the Minister that those grounds do not exist and the Minister is satisfied that it would be in the public interest to cancel the visa.

  • s113A relates to a cancellation by the Minister based on s109 grounds
  • s113C relates to a cancellation by the Minister based of s116 grounds

Emergency cancellation on security grounds (s134B)

If a visa holder is outside of Australia and they represent a security risk to Australia, their visa will be cancelled. No notice is give in such circumstances. For this to happen, the 4 following factors must exist:

  • The Australian Security Intelligence Organisation (ASIO) has made an assessment on the visa holder
  • The assessment contains advice that ASIO suspects that the person might be, directly or indirectly, a risk to Australian security
  • The assessment contains a recommendation that all visas held by the person is cancelled under s134
  • The person is outside of Australia

 Cancellation of business visas (s134)

A Business Talent visa (subclass 132) may be cancelled if the visa holder:

  • Has not obtained a substantial ownership interest in an eligible business in Australia
  • Is not utilising their skills in actively participating at a senior level in the day-to-day management of that business
  • Does not intend to continue to hold a substantial ownership interest in and utilise their skills in actively participating at a senior level ing the day-to-day management of an eligible business in Australia

The grounds for cancellation may also affect investment linked visa such as the Business Innovation and Investment visa (subclass 188).

 Cancellation of student visas due to non compliance (s137J)

A student who has breached with the conditions on their visa may have their visa automatically cancelled under s137j.

Cancellation of Regional Sponsored Migration Scheme (RSMS) visas (subclass 187) (s137Q)

A visa holder whose visa is cancelled under these grounds would fall under one of the following circumstances:

  • The RSMS 187 visa holder has not commenced employment with their sponsor in their nominated role for which their visa was granted within a specified timeframe and no genuine effort was made to commence employment
  • The RSMS 187 visa holder commenced employment which their sponsor in their nominated role for which their visa was granted and the employment terminated within two years from the day the RSMS 187 visa holder commenced employment and no genuine effort was made by the RSMS 187 visa holder to be engaged in employment for the full two years

Read: Don’t Jeopardise Your RSMS 187 Visa. Know What The Cancellation Grounds Are.

Consequential cancellation (s140)

Consequential cancellation is where one person’s visa is cancelled based on another person visa holder being found to be subject to grounds of cancellation under s109, s116, s128, s133A, s133C or s137. This is the cancellation of the visa of:

  • Family members of a person whose visa has been cancelled
  • Other persons who hold visas only because of the visa held by the person whose visa has been cancelled
  • Dependent children

We will publish an article on this quite soon, so do check back in or follow us on Facebook!

Cancellation of visa on character grounds (s502)

Character requirements form an important part of any visa application and in the same way, failing to meet chracter requirements may result in the loss of your visa. The DOHA assesses this via a “character test”. You would fail this test if you:

  • Have a substantial criminal record
  • Are convicted of an offence
  • Is a member of a group or organisation, or has had or has an association with a group, organinsation or person
  • Are suspected of being involved in conduct related to people smuggling, trafficking in persons, genocide, crimes against humaity, war crimes, torture or slavery, or crimes that are otherwise of serious national concern
  • Have unfavorable past or present criminal history
  • Have past or present general conduct that is unfavorable
  • There are reasons for which the DOHA believes you to be a risk to the Australian community, a segment of the community or to an Australian individual
  • Have any sexually based offences involving a child
  • Have been charged or indicted in Australia or in a foreign country
  • Have been assessed by the Australian Security Intelligence Organisation to be directly or indirectly a risk to security
  • Are the subject of an Interpol notice and it is likely you represent a risk to the Australian community or a segment of that community

Read: Are you of good character? Your visa is at stake

Notice of Intention to Consider Cancellation (NOICC)

When the Department of Home Affairs (DOHA) discovers that there are grounds for cancellation they are legally obligated to notify the visa holder that they have intention to cancel that visa holder’s visa. This is when a visa holder receives a Notice of Intention to Consider Cancellation (NOICC). The purpose is to provide the visa holder with an opportunity to respond to the grounds for cancellation of the visa.

The visa holder will be given the reasons as to the DOHA’s intention to cancel the visa and be advised as to how they should respond as well their deadline to do so. Generally this varies between 5 working days and 28 calendar days. In these 5 days it is time to seek expert advice on whether you can apply for some other type of visa before the cancelation takes place. Once the cancelation takes place it will be then too late.

Responding to the NOICC

The first thing to know when you get a NOIC there is a 99% chance they intend to cancel your visa no matter what you say in your defence. They see giving you a NOIC as just a formality to the proceedings. The period for response begins on the day after the date on which the NOICC is assumed to have been received by the visa holder. This, of course, takes into account the method of delivery. The date a NOICC is taken to be received is generally as follows:

  • If it is handed to the visa holder or another person at a residential or business address – it is taken to have been received at the time it is handed to the person
  • If it is sent by pre-paid post to the visa holder in Australia – it is taken to have been received 7 working days after the date of the document, provided it is sent within 3 working days of the date of the document
  • If it is sent by pre-paid post to the visa holder outside Australia – it is taken to have been received 21 days after the date of the document, provided it is sent within 3 working days of the date of the document
  • If it is emailed, faxed or delivered by other electronic means to the visa holder – it is taken to have been received at the end of the day on which it was transmitted

If the visa holder is in Australia and there are national or State/Territory public holidays during the period the NOICC is sent, it will be taken into account when calculating the 7 working days taken for the document to have been received.

If the period for response ends on a Saturday, Sunday, public holiday or bank holiday, the period for response will end on the next working day.

The visa holder may also be invited to respond via an interview, in which case information on the when and where will be provided to the visa holder.

They only chance you will have to avoid cancellation at this NOIC stage is to demonstrate that the DOHA have made mistakes in the Notice. However even when you do this they will withdraw the incorrect one and often just produce another new one. Your real chance of getting a fair chance of being heard will happen on appeal to the AAT. During an appeal an unbiased assessment of the facts will take place and it very possible to have the cancellation revoked.

Cancellation without notice (s128)

Other than s134 situations, there are certain situations in which the DOHA may cancel a visa without notice. This is when there are s116 grounds and the visa holder is outside of Australia and the DOHA believes that if the visa holder would return to Australia to respond to the NOICC, it would be more difficult to cancel the person’s visa and remove them from Australia. Examples of situations in which this may occur include:

  • The visa holder is currently holidaying overseas and is a security risk to Australia
  • An education provider informs the DOHA that a Student 500 visa holder has withdrawn from their course and returned to their home country
  • A visa holder has provided incorrect information on their visa application and so was not entitled to the grant of their visa, and the person has not yet entered Australia on that visa

Are you the recipient of a NOICC or in a complicated situation and worry that you grounds for cancellation apply to you? We have seen many cancellation cases and are here to help. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.

Karl Konrad