Preventing Australian Visa Cancellation
The Australian Migration Act 1958 provides for only the Minister or a delegate of the Minister to grant, refuse or cancel a visa. These powers can be applied as mandatory, discretionary, or purely by operation of law. Cancellation of visas, in particular, is purely at the discretion of the Department of Home Affairs.
Visa Cancellation Powers
There are several different ‘visa cancellation powers’ provided for under the Act and it is the duty of the Department to appropriately apply them on a case-by-case basis. The cancellation powers can be split into categories :
a) General Cancellation Category
S 109 – Incorrect information
S 116 – Power to cancel
S 128 – Cancellation of visas of people outside Australia
b) Character Cancellation Category
S 501 – Refusal or Cancellation of visa on Character grounds
S 501(3A) - Mandatory Cancellation on visa holders in Jail
c) Ministerial Cancellation Category
S 133A – Minister’s personal powers to cancel visas on s109 grounds
S 133C – Minister’s personal power to cancel visas on s116 grounds
S 501 (3) – Refusal or cancellation based on character grounds
S 501A - Refusal or cancellation of visa--setting aside and substitution of non-adverse decision under subsection 501(1) or (2)
S 501B - Refusal or cancellation of visa--setting aside and substitution of adverse decision under subsection 501(1) or (2)
S 501BA - Cancellation of visa--setting aside and substitution of non-adverse decision under section 501CA
d) Other Cancellations
Section 134: Cancellation of Business Visa
Section 134(4): Consequential Cancellation on Family Members of Business Visa Holders
Section 134B: Emergency Cancellation on Security Grounds
Section 137Q: Cancellation on Regional Sponsored Employment visas
Section 137T: Cancellation of other visas
Section 140: Cancellation of visa results in other cancellations
If in some instances where more than one cancellation power is applicable, then it is at the Department’s discretion to pick the appropriate cancellation power based on evidences at hand.
What are the considerations or reasons taken into account when cancelling a visa?
The main considerations include but are not limited to
a) Non-complaint with visa conditions
b) Did not meet character requirements
c) Provided false information on the application
If the client is present in Australia or under immigration clearance, the Department will notify the recipient of their intention to consider cancellation of the visa, which we refer to as Notice of Intention to Consider Cancellation (NOICC). They will also provide an opportunity for the client to be heard and to give reasons as to why their visa should not be cancelled.
Passing Character Test to Prevent Visa Refusal or Visa Cancellation
The Minister or a delegate of the Minister, has the power under s501 to refuse or cancel a visa, if the applicant fails to pass the ‘character test’. The character test is dealt with in detail under s501(6). A person is considered to have failed the character test if :
They have a substantial criminal record
Have been convicted of escaping from immigration detention
Have committed offences whilst in immigration detention
Have been a member of, or had associations with, an organisation involved in criminal conduct
Is reasonably suspected of being involved with people smuggling, people trafficking, genocide, war crimes or crimes against humanity
Have convictions for one or more sexually based offences involving a child
Are the subject of an adverse assessment by ASIO
An Interpol notice has been issued from which it would be reasonable to conclude that they present a risk to the Australian community.
The applicant should declare all or any criminal conduct that they may have engaged in, truthfully provide all answers to questions and provide all requested information. In doing so, the Department will consider all the circumstances of the case and in some instances can choose to grant a visa, despite the applicant not satisfying the character grounds.
Cancellation of Student visa:
The Department may cancel a previously issued student visa if the course requirements haven’t been met, have not complied under the student visa conditions or no longer enrolled in a registered course. Other reasons include
If the holder of the student visa completes the course for which they were granted the visa and they do not leave Australia or apply for a new visa within 3 months.
The holder of the student visa has changed courses since the visa was granted and the new Confirmation of Enrolment for principal course has an earlier end date and they do not leave Australia or apply for a new visa within 28 days of completing the course.
Where the holder of the student visa is studying for more than one course on their visa (course packaging) and finish a course early and have a gap between courses of more than 2 months (except if this gap occurs between the end of an academic year and the beginning of a new academic year).
How Can Agape Henry Crux Help
At Agape Henry Crux, our Accredited Specialist Immigration Lawyers and our team of immigration lawyers and migration agents are well trained to handle highly complex matters. You can book one of our lawyers or agents to seek professional advice by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Burmese, Japanese, Mandarin, Cantonese, Indonesian, and Malay. If this isn’t your language, we can also help you arrange an interpreter.
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