There are certain circumstances where the cancellation of a person’s visa may result in the cancellation of their family members’ visas as well. The Department of Home Affairs (DOHA) terms this as “subsequent cancellation” or “consequential cancellation”. Depending on the situation, this may be an automatic result or one that is dependent on the discretion of the DOHA.
Who is consequentially affected:
- Member of the family unit of a person whose visa has been cancelled
- Others who hold visas only because of the visa held by the person whose visa has been cancelled
- Children who hold visa due to the implication of the Children And Young Persons (Care And Protection) Act 1998 – Sect 78.
Member of the family unit
The DOHA defines member of the family unit as:
- A spouse or de factor partner
- A dependent child
Read: When a child is considered dependent
Grounds for cancellation that will result in consequential cancellation
For an associated person’s visa to be cancelled, a visa holder would have to have their visa be cancelled on the following grounds:
- Failure to comply (s109)
- Cancellation of visas on specified grounds (s116)
- Cancellation of visas of persons outside Australia (s128)
- Cancellation of visas by the Minister based on s109 grounds (s133A)
- Cancellation of visas by the Minister based on s116 grounds (s133C)
- Cancellation of a student visa due to non compliance (s137J)
We have covered the above grounds for cancellation in our previous articles which you can find through the following links.
Read: When Are You At Risk Of A Visa Cancellation?
Read: More On Cancellation Grounds – s116, Cancellation Of Visas On Prescribed Grounds
Automatic cancellation (s140(1))
An automatic consequential cancellation of a visa for an affected party occurs when these two things happen:
- The person’s visa was obtained because they are the member of the family unit and not based on their own merit (secondary visa holder)
- That main visa holder has their visa cancelled on the grounds discussed above.
It’s actually a very specific rule. Being a member of the family unit alone is not enough to get into trouble. The criteria that a person’s visa was obtained because they are a member of the family unit refers to their satisfying secondary criteria on the main visa holder’s visa application. In the situation where a partner for example has received their visa based on being the partner of an Australian citizen, permanent resident or eligible New Zealand citizen, they have actually satisfied main criteria in being a member of the family unit and are not secondary visa holders but main visa holders. To help clarify this further, take a look at these examples:
- A husband and wife are both granted Temporary Skill Shortage (TSS) visas (subclass 482) on the basis the husband satisfied primary criteria and the wife satisfied secondary criteria, which include a criterion that she be a member of the family unit of her husband. If the husband’s TSS 482 visa is cancelled under s116 grounds, the wife’s visa is automatically cancelled under s140(1).
- A wife holds an Employer Nomination Scheme (ENS) visa (subclass 186) and she sponsors her husband for a Partner 309 visa. He satisfies primary criteria, which include a criterion that he be her husband, and is granted a Partner 309 visa. The wife’s ENS 186 visa is cancelled under s109. The husband’s visa is not able to be cancelled under s140(1) because he does not hold the Partner 309 visa on the basis of being a member of the family unit of his wife
If you are confused about that last example, or feel like this might be a loophole, read on as someone in that situation is not necessarily unaffected by consequential cancellation.
Discretionary cancellation (s140(2))
Discretionary consequential cancellation is a result of:
- That persons having obtained their visa on the basis of another person obtaining that person’s visa
- The other person has had their visa cancelled on the grounds as described above
Discretionary simply means that the Department of Home Affairs (DOHA) will assess things on a case by case basis. Examples of this are:
- A husband holds an ENS 186 visa and he sponsors his wife for a Partner 309 visa. She satisfies primary criteria, which include a criterion that she be her husband’s partner, and is granted a Partner 309 visa. The husband’s ENS186 visa is cancelled under s109 grounds. The wife’s visa is not cancelled under s140(1) because she does not hold the Partner 309 visa because she is not a secondary visa holder. However, the wife’s visa is liable to be cancelled under s140(2) because she holds her visa only because her husband held his visa.
- A Student visa (subclass 500) holder under 18 years old nominates their father to be their student guardian during the student’s stay in Australia. The father satisfies primary criteria for Student Guardian visa, including the criterion that they be a parent of a nominating student visa holder under 18 years old, and is granted a Student Guardian visa. However, the student visa holder’s visa is cancelled under s116 grounds. The father’s Student Guardian visa is not cancelled under s140(1), because he does not hold this visa on the basis of being a member of the family unit of the student visa holder. However, the father’s Student Guardian visa is liable to be cancelled under s140(2) because he holds his visa only because his child held a student visa.
Factors that affect the decision to cancel
Unlike s140(1) and s140(3) which prescribe grounds for automatic cancellation, a discretionary cancellation means that the DOHA will have to consider certain factors before making their decision. Those factors are:
- The purpose of the visa holder’s travel to and stay in Australia
- The degree of hardship that may be caused to the visa holder and any family members should there be a consequential cancellation
- The circumstances in which the ground for cancellation arose (for example, whether extenuating or compassionate circumstances outweigh the grounds for cancelling the visa)
- The visa holder’s past and present behaviour towards the department (for example, whether they have been truthful in statements or applications made to the department or have previously complied with visa conditions).
- In the case of a permanent visa, the links that the person may have made to the community, for example, the strength of family, social, business and other ties in Australia
- Whether Australia has obligations under relevant international agreements that would be breached as a result of the visa cancellation. Some examples include:
- If there are children in Australia whose interests could be affected by the cancellation, delegates are obliged to treat as a primary consideration the best interests of the children
- Australia’s international obligations
- The treatment of children under Australian law
- Whether the cancellation would lead to removal in breach of Australia’s non-refoulement obligations – that is, removing a person to a country where the person faces persecution, arbitrary deprivation of life, the death penalty, torture, cruel, inhuman or degrading treatment or punishment
- The impact of cancellation on any victims of family violence, if family violence is a factor
- Any other relevant matters
Automatic cancellation for children (s140(3))
A child’s visa is automatically cancelled when the following two circumstance exist:
- The parent of the child holds a visa that is cancelled on the ground detailed above
- The child was granted their visa on s78 grounds – that is, the child was granted the visa because their parent held a visa when the child was born.
Under s78, a non citizen child born in Australia will be granted the same type of visa held by their non citizen parents. They had fulfilled ‘secondary’ criteria by nature of the situation. Interestingly, and a fact not commonly known, if a husband a wife both hold TSS 482 visas (in which both are main visa holders), the child would hold two TSS 482 visas. Should one parent’s visa be cancelled and the other parent (having obtained their visa separately from their partner) still holds their visa, that child would lose their visa based on the parent who had their visa cancelled, but would still hold one visa based on the parent who does not have a cancelled visa.
Here’s an example:
A child is born in Australia. At the time the child is born the mother holds an Visitor visa (subclass 600) and the father holds a TSS 482 visa visa, so at birth the child holds both a Visitor 600 visa and a TSS 482 visa. The father’s TSS 482 visa is cancelled under s116 so the child’s TSS 482 visa is automatically cancelled under s140(3). The mother continues to hold her Visitor 600 visa as it is not taken to be cancelled under s140(1) and cannot be cancelled under s140(2) because of the husband’s visa cancellation). Thus the child continues to hold its Visitor 600 visa.
Do note that this situation will not arise if either parent holds a permanent visa, as a child born in Australia to a permanent visa holder is, with rare exception, by birth an Australian citizen (and so does not hold a visa under s78.
Dealing with s140 cases
Should a visa be cancelled under s140(1) or (3), it is not likely that the affected person will receive a notice that is separate from the notice provided to the main visa holder. However the DOHA will take into account if the affected person resides at a separate address. Cancellations under s140(1) or s140(3) are not reviewable.
Under s140(2) grounds, the affected person would likely be notifying separately and be provided information on:
- Why their visa is liable for cancellation
- If the decision can be reviewed (if an appeal can be made)
- Who can apply for the review
- When the review can be made
- Where the review can be made
Messing around doesn’t only hurt you. It is important for anyone on a visa to know how their actions made impact another person’s life and/or how applying for a visa as a secondary applicant would leave them open to the actions of other. Where possible, it is always beneficial to obtain a visa independently, however this is dependent on each person’s situations, options and needs at the time, as different visa applications would face different struggles and timelines.
Do you want to know all the options available to you or is a loved one in trouble? Find out how best to make things work. Australian Immigration Law Services has dealt with many cases (and won) with the AAT. Call +61 2 8054 2537, 0434 890 199 or book online today to speak to our migration specialists.
