Visa Cancellation
Overview
Visa Cancellations
The Department can take steps to cancel either a temporary or permanent visa that has already been granted. It’s important to obtain legal advice before such a decision is made (to ensure an appropriate response is provided), or after such a decision has been made so you can know your full review/appeal rights and the consequences of the cancellation.
Appealable Decisions
- Visa cancellations can be made under the “general” cancellation powers or the “character” cancellation powers
- Certain visa cancellation decisions should first seek to be “revoked”
- Where a Delegate refuses to revoke the cancellation decision, this can then be appealed to the Tribunal
- Certain cancellation decisions made by the Minister personally cannot be appealed to the Tribunal. You may be able to seek judicial review of such a decision
Process
- The process differs slightly when cancellation is made based on character, or under the “general” cancellation provisions
- Typically, this involves a visa holder being sent a “Notice of Intention to Consider Cancellation” (NOICC), and inviting them to respond
- Where mandatory cancellation provisions are engaged, the applicant will be provided notice that their visa has been cancelled and invited to apply for revocation of the cancellation decision
- Please see our cancellation page for further details, or contact your Global Solicitor representative
Time Limit
- The time limits to apply for review vary depending on the type of decision, and whether the person is in immigration detention
- Generally speaking, decisions to refuse/cancel a visa based on character must be lodged within 9 days after the day on which you were notified of the decision, otherwise, you must lodge an application for review within 28 days after the notification of decisions
- These time limits are very strict
Costs
- An application to the Tribunal for the review of a cancellation decision based on character costs $1,011
- The fee may be reduced to $100 in certain circumstances
- If the review is favorable to the applicant, the entire amount would be refunded less $100
Overview
General Visa Cancellation
Aside from “character” based cancellation decisions, the Department also has “general” cancellation powers to cancel visas for a range of prescribed reasons largely relating to non-compliance with the legislation (such as breaching visa conditions, providing incorrect information, or fraud), or changes in an individual’s circumstances.
Considerations in Cancelling
There are general cancellation powers that may be exercised by a Delegate of the Minister for Home Affairs (Minister) or the Minister personally. Some of the more common grounds utilized include (but are not limited to) circumstances where:
- A visa was granted based (wholly or partly) on facts or circumstances that did not exist;
- A visa was granted based (wholly or partly) on facts or circumstances that are no longer the case, or no longer exist;
- A current visa holder’s application contained incorrect correct information;
- The visa holder has not complied with their visa’s condition;
- The visa holder presents a risk to an Australian individual or the community.
There are also very situation-specific circumstances where an individual’s visa may be considered for cancellation for identity, security, or custody purposes; for breaches of other legislation, or for a visa holder not having genuine intentions to comply with the requirements for their visa.
The Process
Ordinarily, if the Department believes that there are grounds for cancelling a visa, they will send the visa holder a “Notice of Intention to Consider Cancellation” (NOICC) and invite them to respond. The visa holder would need to demonstrate that the grounds do not exist, or that there are otherwise reasons for not cancelling their visa.
Where mandatory cancellation provisions are engaged, the applicant will be provided notice that their visa has been cancelled and invited to apply for revocation of the cancellation decision.
There are typically strict time frames to respond.
Time Limit
The time frame to respond to a NOICC varies depending on where you are at the time you are issued the NOICC.
Generally speaking, if you are in Australia you will have 5 working days to respond. In most cases, if you are outside Australia you will have 28 days to respond (depending on where the cancellation decision is being considered). This timeframe for response can be extended by 5 working days.
These time limits are set by the legislation and can’t be amended.
Appeals
It may be possible to appeal the cancellation decision to the Administrative Appeals Tribunal. There are strict time frames associated with this.
For certain cancellation decisions (such as where visas are cancelled without notice to individuals outside Australia), you would first be invited to show that the cancellation should be revoked.
Overview
Character Cancellation
Considerations in Cancelling
The Department / Minister would first consider whether or not a visa holder passes the “character test”. We have an article on our website here that outlines what the character test is, and a separate article here that outlines the various considerations taken into account in deciding to cancel a visa.
This decision may be made by a Delegate of the Minister for Home Affairs (Minister) or the Minister personally.
The Process
Ordinarily, if the Department believes that there are grounds for cancelling a visa, they will send the visa holder a “Notice of Intention to Consider Cancellation” (NOICC) and invite them to respond. Where mandatory cancellation provisions are engaged, the applicant will be provided notice that their visa has been cancelled and invited to apply for revocation of the cancellation decision.
There are typically strict time frames to respond.
Time Limit
The time limits to apply for review with the Administrative Appeals Tribunal vary depending on the type of decision, and whether the person is in immigration detention.
Generally speaking, decisions to cancel a visa based on character must be lodged with the Tribunal within 9 days after the day on which you were notified of the decision.
These time limits are very strict.
Appeals
In some cases, you would need to first apply for revocation of the cancellation decision. Where a Delegate decides not to revoke the cancellation of a visa, it may be possible to appeal the cancellation decision to the Administrative Appeals Tribunal.
The Tribunal cannot review decisions made by the Minister personally to cancel a visa (or not revoke a visa cancellation). These decisions may be appealed to the Federal Circuit and Family Court of Australia.
There are strict time frames associated with the above.
Costs
An application to the Tribunal for the review of a cancellation decision based on character costs $1,011. This may be reduced to $100 in certain circumstances.
If the review is favorable to the applicant, the entire amount would be refunded less $100.