Visa cancellations

The Minister for Immigration or an officer from the Department of Immigration can cancel a person’s visa using one of the significant number of cancellation powers in the Migration Act 1958 (Cth). No matter how or for what reason your visa has been cancelled, we can help. We can represent you to the Department of Immigration, in a review in the Administrative Appeals Tribunal or an appeal to the Federal Court. We provide some general information about the most common visa cancellation powers below.

 
 

Visa cancellation powers

 

Section 501(2)

 

If a person fails the character test, the Minister can cancel their visa under s 501(2) of the Migration Act.

The most common way a person fails the character test is by being sentenced to a term of imprisonment of 12 months or longer. However, other ways of failing the character test include: being a member of a group or organisation engaged in criminal conduct, being a risk of engaging in criminal conduct and being a risk of harassing, molesting, intimidating or stalking another person.

If the Minister is satisfied that a person fails the character test, then the Minister will consider a range of factors in deciding whether to cancel that person’s visa. These factors usually include: the protection of the Australian community, best interests of minor children in Australia affected by the decision, expectations of the Australian community and strength, nature and duration of ties to Australia. After considering all relevant matters, the Minister will decide whether to exercise his discretion to cancel the visa.

If you or someone you know has had their visa cancelled under s 501(2) of the Migration Act or has received a notice of intention to consider cancellation under s 501(2) of the Migration Act, get in touch for a consultation at 08 6558 1838, schedule a call or request an appointment.

 

Section 501(3A)

 

If a person fails the character test due to having been sentenced to a term of imprisonment of 12 months or longer, or being convicted of a sexually based offence involving a child, and is serving a term of imprisonment, the Minister will cancel their visa under s 501(3A) of the Migration Act.

Section 501(3A) is known as the mandatory cancellation power. A person can apply for the revocation of the mandatory cancellation of their visa under s 501CA of the Migration Act. In order to revoke the cancellation, the Minister has to be satisfied that there is “another reason” to do so.

What constitutes another reason to revoke the cancellation of a person’s visa will usually be informed by factors such as: how long the person has been in Australia, whether the person has any Australian children, whether the person has made positive contributions to the community, how serious is the person’s offending to date and what is the risk of that person reoffending. After considering all relevant matters, the Minister will decide whether he is satisfied that there is another reason to revoke the mandatory cancellation.

If you or someone you know has had their visa cancelled under s 501(3A) of the Migration Act, get in touch for a consultation at 08 6558 1838, schedule a call or request an appointment.

 

Section 109

 

If a person has obtained a visa on the basis of incorrect information, the Minister can cancel their visa under s 109 of the Migration Act.

There a number of steps in this cancellation power. The first is the Minister must be satisfied that the visa holder has been non-compliant with the obligations imposed by sections 101-105 of the Migration Act. These obligations include: giving correct answers on the visa applications and passenger cards, not providing bogus documents, notifying the Minister of a change in circumstances and correcting, as soon as practicable, any incorrect answers previously given.

Once the Minister is satisfied of relevant non-compliance, then the Minister must consider any response given by the visa-holder to the allegations of non-compliance and have regard to certain considerations. These considerations inevitably include: the circumstances in which the non-compliance occurred, what the correct information is and the best interests of any children affected by the decision. After taking these matters into account, the Minister will decide whether to exercise his discretion to cancel the visa under s 109.

If you or someone you know has had their visa cancelled under s 109 of the Migration Act or has received a notice of intention to consider cancellation under s 109 of the Migration Act, get in touch for a consultation at 08 6558 1838, schedule a call or request an appointment.

 

Section 116

 

Section 116 gives the Minister the power to cancel a person in a number of different circumstances, such as where: the person has not complied with a condition of their visa, the presence of the person in Australia is or may be, or would or might be, a risk to the health or safety of an individual, or there are prescribed circumstances which exist relevant to the particular visa held by the person.

This power cannot be used to cancel a permanent visa of a person who is in the migration zone. However, this power can be used to cancel New Zealander visas, and is often used when the Minister wants to remove New Zealanders from the community quickly.

It can also be used to cancel Student visas where the Minister considers the person is not a genuine student, and used to cancel Visitor visas where the Minister considers the person is not a genuine temporary entrant. In sum, it can be used against a wide range of people in a wide range of circumstances.

If you or someone you know has had their visa cancelled under s 116 of the Migration Act, or has received a notice of intention to consider cancellation under s 116 of the Migration Act, get in touch for a consultation at 08 6558 1838, schedule a call or request an appointment.

 

Section 134

 

The Minister can cancel a person’s business visa under s 134 of the Migration Act if that person has either: has not obtained a substantial ownership interest in an eligible business; or is not utilising his or her skills in actively participating at a senior level in the day-to-day management of that business; or does not intend to continue to do either of those two things.

A person’s business visa will not be cancelled if the person has made genuine attempts to obtain a substantial ownership interest and/or participate at a senior level in that business. There are a significant number of considerations that the Minister will take into account in determining whether a person has made genuine attempts, such as: business proposals that the person has developed, whether the person has business partners, business activity and length of time present in Australia.

After taking these matters, and others, into account, the Minister will decide whether to exercise his discretion to cancel the visa under s 134 if not satisfied that the business visa holder has made genuine attempts.

If you or someone you know has had their visa cancelled under s 134 of the Migration Act or has received a notice of intention to consider cancellation under s 134 of the Migration Act, get in touch for a consultation at 08 6558 1838, schedule a call or request an appointment.