A visa can be cancelled by the Department of Home Affairs for several reasons. These include non-compliance with visa conditions, a failure to meet character requirements, or the provision of false information on a visa applications. Visa cancellations are governed by the Migration Act 1958.
Power to cancel a visa
Section 116 of the Act lists the general reasons a visa can be cancelled:
- the visa was granted based on facts or circumstances which did not exist or no longer exist;
- non-compliance with a visa condition;
- the visa holder may be a risk to the health, safety or good order of a person or Australians in general.
The visa can be cancelled before the visa holder enters Australia, while they are in Australia or when they have left Australia.
The Act also contains specific instances where a visa may be cancelled.
Emergency cancellation on security grounds
Section 134B mandates the Home Affairs Minister must cancel a visa if the visa holder is assessed by the Australian Security Intelligence Organisation (ASIO) as a security risk, ASIO recommends the cancellation, and the visa-holder is outside Australia.
Section 501 mandates the Home Affairs Minister must cancel a visa if the visa holder does not pass the character test. A person does not pass the test if they have a substantial criminal record, which means they have been sentenced to death, life in prison, or imprisonment for 12 months or more; or if they have been convicted, in Australia or abroad, of a sex offence involving a child. The visa must also be cancelled if the person is serving a full-time sentence in prison.
Section 134 states the Home Affairs Minister can cancel a business visa if they are satisfied the visa holder has not obtained a substantial interest in a business in Australia or is not using their skills to actively manage such a business at a senior level.
Regional sponsored employment visas
Section 137Q states the Home Affairs Minister can cancel a sponsored employment visa if they are satisfied the visa holder:
- has not started employment within the specified time, and has not made a genuine effort to do so; or
- started employment and the employment ended within the required 2-year period; or
- made no genuine effort to engage in the employment during the required 2-year period.
Section 137J states the Home Affairs Minister can cancel a student visa if they are satisfied the visa holder has not complied with a condition of the visa. Such instances include when the visa holder does not maintain satisfactory attendance in a course, works more than 40 hours in a fortnight, or does not leave Australia within 3 months of completing their studies.
Section 116(1AC) states the Home Affairs Minister can cancel a visa if they are satisfied the visa holder is involved in paying for visa sponsorship. In making a decision, the minister will look at factors including whether the visa holder initiated or was complicit in paying for the sponsorship, and the visa holder’s co-operation with the department in its investigation.
Section 140 states that if a person’s visa is cancelled (on one of most of the grounds under the Act), a visa held by another person because they are a family member of the primary visa holder, is also cancelled.
Appealing a cancellation
The Administrative Appeals Tribunal can review a decision to cancel a visa on character grounds, unless the decision was made by the minister personally. The visa-holder can seek a “merits review” by lodging an application with the AAT by the date specified in the visa cancellation notice. If the visa holder is in Australia, they have 9 days, from the date of the decision, to lodge an appeal. The AAT has no power to extend this time. The AAT will review all aspects of the decision and decide whether the decision was appropriate in the circumstances.
If the visa was mandatorily cancelled, there is no right of appeal to the AAT. The visa-holder has 28 days from the date of cancellation to request a revocation of mandatory cancellation decision to the department. A decision by the department not to revoke a mandatory cancellation is reviewable and the visa-holder must apply to the AAT within 9 days of notification of the decision.
If an appeal to the AAT is unsuccessful, the visa holder can apply to the Federal Circuit Court for a judicial review. This must be done within 35 days of the date of the AAT decision. This review will look only at the legality of the cancellation decision (whether an error of law was made), not at the merits of the case. If the court finds an error of law was made, the decision may still stand.
For advice or representation in any legal matter, please contact Armstrong Legal.