My Australian Visa Might Be Cancelled: What Now?
Providing incorrect information on your visa application can result in visa cancellation proceedings.
The current Migration Act of 1958 states that the Minister for Immigration has the power to cancel a visa if incorrect information has been provided to the Department of Home Affairs. The Act requires non-citizens to provide correct information on both visa applications and passenger cards. It also requires non-citizens to not provide falsified documents, notify the Department of any incorrect information of which the non-citizen becomes aware, and notify the Department of any relevant changes in circumstances.
Will my visa be cancelled if I did not know that I provided incorrect information on my visa application?
The Minister has the power to cancel a visa even if the person who provided the incorrect answer did not know that the information was incorrect. The law states that ‘an answer to a question is incorrect even though the person who gave or provided the answer, or caused the answer to be given or provided, did not know that it was incorrect,’. This provides legal authority for your visa to be cancelled even if you did know at the time that your answer was wrong.
I have been issued with a Notice of Intention to Consider Cancellation (NOICC) to cancel my visa. What do I do now?
If the Department of Home Affairs is considering cancelling your visa they must firstly issue you with a Notice of Intention to Consider Cancellation (NOICC) of your visa. There are strict time limits to respond to this notice. It is critical to respond to this notice and provide evidence and submissions on why your visa should not be cancelled.
If you receive a NOICC we recommend that you seek legal advice from an immigration lawyer immediately. A visa cancellation will have significant negative implications for yourself and for your family. When you are facing visa cancellation it is important that your case be presented as strongly as possible. An experienced immigration lawyer will prepare your response to the Department of Home Affairs and ensure that no important points or evidence in support of your case is missed. Live Work Australia has lawyers specialising in preparing responses to a NOICC and representing clients at risk of visa cancellation.
A NOICC must be issued to the visa holder in the correct manner. If it does not meet the requirements set out in Migration Regulations a lawyer can request that the NOICC be re-issued. This will start the clock again and provide additional time to prepare and provide a response.
What factors will be taken into account when deciding whether or not to cancel my Australian visa?
There are a number of factors that should be addressed in a response to a NOICC. These include, but are not limited to, the following:
- The complete and correct visa information
- Whether the incorrect information was material to the visa grant
- The circumstances under which the wrong information was submitted
- The visa holder’s present circumstances
- The visa holder’s subsequent behaviour after declaring the wrong information
- Any other instances of visa violations by the visa holder
- The amount of time that has passed since the wrong information was given
- Any breaches of law committed by the visa holder
- Any contribution to the community made by the visa holder
- The effect on children or dependents in Australia if the visa holder’s visa is cancelled
- Whether the visa cancellation would force the visa holder back to an inhumane or persecuted country of origin
- Any subsequent legal consequences that may be necessary as a result of visa cancellation
My visa was cancelled. What options do I have?
If the Department of Home Affairs make a decision to cancel your visa you can appeal the visa cancellation decision at the Administrative Appeals Tribunal. There are strict time limits for lodging the appeal. Visa cancellation cases are given top priority by the Tribunal, however a hearing can still take approximately six months or more. Under limited circumstances you may be granted an urgent hearing.
It is important to understand that you will not have a valid visa to remain in Australia while you wait for your Tribunal hearing and you will lose access to Government benefits such as Centrelink. This can have a crushing effect on people reliant on those services.
While there is scope to make an application for a Bridging Visa E to keep you lawful in Australia while you await your Tribunal hearing, you do not have an automatic right to have this application considered. The Minister of Immigration must firstly make a decision to allow your Bridging Visa application to be considered. If the Minister chooses not do so, your Bridging Visa application will be deemed invalid and you will remain unlawful.
The practical implication of this is that many people are living in Australia unlawfully while they wait for their visa cancellation cases to be heard at the Tribunal. While the law provides for unlawful non-citizens to be placed in immigration detention, this does not appear to be common practice for unlawful non-citizens waiting in Australia for Tribunal hearings.