Is Your Australian Visa Being Considered For Cancellation?
Receiving a notice that your visa is being considered for cancellation or has been cancelled is incredibly traumatic and the consequences can be life-changing. If you are on the receiving end, it feels like your world is caving in. The fact is you are not alone, unfortunately visa cancellations are being aggressively pursued by the Department of Home Affairs at present, with hundreds of visas being cancelled on a daily basis.
If this has happened to you or a loved one, what you need to know is that there are ways to have these decisions reviewed, set aside or overturned on appeal. The Administrative Appeals Tribunal (AAT) is independent of the Immigration Department and their role is to review these decisions on the basis of merit.
“It is a fundamental premise of the rule of law in a democracy that there are checks on the power of the executive, and that there are avenues for redress. The fact that cancellation can occur on the basis of suspicion is “particularly concerning”, and as such, reviews by the Administrative Appeals Tribunal (AAT) are essential in ensuring visas are not cancelled unfairly.” Australian Lawyers Alliance.
Why Are So Many Australian Visas Being Cancelled?
The number of Australian visas cancelled has soared since December 2014, when the government amended its immigration law. The Home Affairs Department and Minister Peter Dutton now have more discretionary powers than ever, allowing them to cancel the visas of people who could ‘pose a risk’ to the community or that they deem are not of ‘good character’.
This is why the right to a merits review is a vital safeguard to redress errors by the department, and where experienced immigration lawyers, particularly those who specialise in cancellations and refusals, are getting many of these decisions set aside or overturned on appeal.
Why Have I Received This Notice?
Visas can be considered for cancellation for a number of different reasons by the department of Home Affairs as mentioned above. The specific reasons could be:
- They believe you have not complied with a condition of your visa
- They believe you provided false information on your visa application or entry card
- The circumstances which qualified you for a visa no longer exist
- They believe you did not disclose pre-existing health issues
- They believe you fail the character test meaning
- You have a substantial criminal record
- You may be involved in criminal conduct
- You may be involved or associated with a member of a group or organisation which is suspected of being involved in criminal conduct
- You may be involved in fraud related activities
- You may be perceived to be a risk to a segment of the Australian community
- You may provoke discord in the Australian community
- You may be a danger to the community of Australia
Sections under which you can receive a Notice of Intention to Consider Cancellation (NOICC) include: 501, 116, 109.
In the case of a mandatory cancellation: 501(3A), there is no right of appeal. In this case, however you can apply for a revocation of the decision.
What Happens If My Visa Is Cancelled?
If, following this notice, your visa is cancelled:
- You become an unlawful non-citizen and will be placed in detention
- You can be removed and forced to immediately leave Australia
- You may be excluded from returning to Australia potentially forever, or for a number of years.
What Should I Do Now?
First try to stay calm and find out what legal recourse you have, given your specific situation. While it is crucial that you act fast, due to the very strict time limits on these notices, you need to make sure you get the right advice and representation for your individual circumstances to ensure you have the best chance of a favourable reconsideration.
In most cases, the Department of Home Affairs exercises a discretion on whether or not to cancel a visa. Engaging help from a specialist in visa cancellations is the most important thing you can do. They have a greater depth of experience and understanding of the factors involved in the cancellations process, which enables them to quickly identify the best options available to you, based on your specific case.
What Is The Process To Appeal the Decision?
Remember once you receive this notice, you need to act fast. If you do not respond within the time limit, you will lose your chance to appeal.
Under the Migration Act, certain decisions are known as merits reviewable decisions, which is the right to have your visa cancellation decision reviewed by Independent bodies.
The AAT has the capacity to independently review the decision from a merits perspective, where the cancellation can be assessed by a decision maker who is independent of the Department of Home Affairs.
In cases where there is no power for the AAT to review the merits of a cancellation decision, you may be able to seek a judicial review of the legality of the decision.
What Are The Next Steps?
Visa cancellation decisions can be overturned or set aside by the AAT and the process for applying for a review of the decision can be done quickly.
First, you need to confirm that your case is eligible for review. In circumstances where there is scope to appeal a decision, you may be entitled to a Bridging Visa to remain in the community. This can be actioned quickly.
ACT FAST! If your decision is reviewable, it is critical that you act fast to take the necessary steps to lodge your appeal. Strict time limits apply to visa cancellations and if you miss your window to have the decision reviewed, there may be no recourse.
Speak to an experienced visa immigration lawyer as soon as possible. There are numerous reasons, arguments and cases that can be presented to challenge the cancellation, in which a specialist in the field is well-versed. They will also be better able to identify the circumstances in which the Department notification may actually be deemed invalid, and cases where the decision-maker failed to follow the correct legal process in making a decision.
Use our checklist below to select a firm with the best chance of getting your decision overturned or set aside. It is important to choose a representative with extensive experience in the field.
Checklist – How To Choose The Right Representation
As the stakes are so high, selecting a lawyer who has an in-depth experience with this specific process is critical. Depending on your circumstances, if your appeal is unsuccessful you may be placed in detention, deported/removed and may be excluded from returning to Australia.
You need to make sure the lawyer you choose to represent you:
- Specialises in immigration visa cancellations
- Has extensive experience dealing with the AAT
- Has an in-depth understanding of the process and the factors that have historically led to positive outcomes for different scenarios
- Can identify instances where technicalities and processes have not been followed correctly by the Department of Home Affairs, and
- Has a strong track record presenting cases for favourable reconsideration
Timpson Immigration Lawyers
Timpson Immigration lawyers are experts in this area, specifically specialising in visa refusals and cancellations. We have assisted countless clients who have had these issues and we have a huge amount of success in doing so. We have in-depth experience with all types of visas including partner, work, skilled, sponsored, student, spouse, de facto and protection visas.
- We specialise in visa cancellation cases
- Character, health, technicalities and other discretionary grounds
- We understand how important these cases are to each individual
- We lodge urgent appeals fast
- Over 10 years of experience presenting cases for favourable reconsideration
- Our single goal is to get you that YES
A visa cancellation is something that everyone dreads receiving or even hearing about, but if you act quickly and choose the right representative, it does not have to mean the end.
Please get in contact with us to get started today
We help clients all over Australia and the world with their visa issues and have helped countless people through these stressful times to get to yes.
Call 1300 193 326 (Australia)
+ (61) 7 3166 9100 (International)
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