Consequences of Providing False and Misleading Information in Your Visa Application

Letters to Kris

Dear Brownthumb,

You are in big trouble.

As you admit and acknowledge your wrongdoing, by providing false and misleading (incorrect) information that resulted in your current working holiday visa, it may be subject to cancellation under s109 of the Migration Act 1958.

You would have been given 14 days to make a comment about the allegations. This is because s109 cancellation is not a mandatory cancellation, and the Department is required to consider the following elements before deciding whether to cancel your visa:

• the correct information;

• the content of the genuine document (if any);

• whether the decision to grant a visa or immigration clear the visa holder was based, wholly or partly, on incorrect information or a bogus document;

• the circumstances in which the non-compliance occurred;

• the present circumstances of the visa holder;

• the subsequent behavior of the visa holder concerning his or her obligations under Subdivision C of Division 3 of Part 2 of the Act;

• any other instances of non-compliance by the visa holder known to the Minister;

• the time that has elapsed since the non-compliance;

• any breaches of the law since the non-compliance and the seriousness of those breaches;

• any contribution made by the holder to the community. 

The delegate will also consider the following four matters:

• Whether there are persons in Australia whose visas would, or may, be cancelled consequentially.

• Whether Australia has obligations under relevant international agreements that would or may be breached as a result of the visa cancellation.

• Whether there are mandatory legal consequences to a cancellation decision.

• Any other relevant matters.

If you feel that there are some arguments with evidence to support your visa not being cancelled, you should take this opportunity to comment and outline why your visa should not be cancelled.

 If you do, and even if your visa is not cancelled, you shouldn’t relax because of this thing called Public Interest Criteria (PIC) 4020 – I will cover this below.

If you (or the Department) consider that you don’t have any good response to any of the above considerations, your visa will likely be cancelled.

Consequences of Cancellation under s109

1. You will become unlawful

2. You will be subject to s48 ban

3. You will be subject to PIC 4013

4. You will be subject to PIC 4020

1. Immigration status – You will become unlawful

When your visa is cancelled, any visa that you have held will cease and you will become unlawful. This also includes any bridging visas that you may have had from applying a new visa before the cancellation.

To legalise yourself, you should apply for a bridging E visa (BVE) and you should do this quickly to get the BVE within 28 days from the cancellation to prevent further complications (e.g. PIC4014).

If you have made an application to review the cancellation decision to the Administrative Appeals Tribunal (AAT), your BVE will be issued until the AAT finalises the appeal.

If you have not made the AAT application, the Department will generally issue you a BVE under departure basis and allow you to stay for only about 2~10 weeks depending on the circumstances.

You will not be able to work lawfully under BVE, but if you are experiencing financial hardship, you may be able to apply for work rights (waive the ‘no work’ condition).

2. You will be subject to s48 ban – inability to make visa applications in Australia

When your visa is cancelled, you will not be able to make most visa applications in Australia, unless you are applying for specific visas such as a protection visa, partner visa etc.

Hence, unless you are eligible for those special visas, if you do want to apply for a new visa, you will need to depart and submit these applications outside of Australia. But please be mindful of the other Public Interest Criterions (PICs) which I will cover below:

3.     You will be subject to PIC 4013 – inability to be granted Australian visas for 3 years

Cancellation under s109 invokes a three (3) year ban to be granted visas (most temporary) – even if you do make a ‘valid application’.

 You can request the Department to waive this ban if you are able to show that you have a ‘compelling circumstances that affect the interests of Australia’ or ‘compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident or an eligible New Zealand citizen’.

 There are some visas, generally permanent visas, that are not subject to PIC 4013.

4.     You will be subject to PIC 4020 – inability to be granted visas for about 12 months

As you have provided fraudulent/ misleading information to obtain the last visa. Any visas that you apply in the next 12 months starting from when you last held this working holiday visa, may not be granted due to the PIC 4020.

Like the PIC 4013, you can request the Department to waive this ban, if you are able to so that you have a ‘compelling circumstances that affect the interests of Australia’ or ‘compassionate or compelling circumstances that affect the interests of an Australian citizen or permanent resident or an eligible New Zealand citizen’.

But be careful - If do you make a new visa application within the 12 months, and fail to satisfy the PIC 4020 – your PIC4020 inability period will increase to three (3) years from the day that they refuse your new visa.

Don’t despair! Despite all the above complications, you may still be eligible for a new visa.

Your situation is not new to us. Everybody makes mistakes, but the Department will penalise you heavily for your wrong-doings.

It is very important for us that you know exactly what sort of trouble that you are in – so that we can have a detailed discussion about what we can do for your future in Australia.

Depending on your circumstances, we may be able to find a way for you to remain in Australia without having to leave and help you get a permanent visa.

 Again depending on the circumstances, it may be a straight forward winner or may require us to carefully strategize to build your case to ensure that you satisfy all the necessary migration laws.

You have to know the rules to play the game, by no means we take your circumstances lightly, but we cannot imagine any better immigration law firm than Agape Henry Crux, where we have two (2) accredited specialists in Immigration Law who constantly advise and educate other immigration lawyers and agents.

How Can Agape Henry Crux Help

Representation matters for immigration matters. Give us a call on 02 7200 2700 or email info@ahclawyers.com if you are in a similar situation as the above enquirer, and book in a time with any of our highly trained and qualified immigration advocates. We’ll help you strategise what is best for you.

We speak fluent English, Korean, Burmese, Mandarin, Cantonese, Indonesian, and Malay. If these aren’t your language, we can also help you arrange an interpreter.

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