Visa Cancellation: A Guide For Avoiding And Responding To Cancellation Letters

How long can I remain in Australia after visa cancellation?

If your visa is cancelled and you have an option for another visa then you must immediately apply for that visa.  You must also apply for a bridging visa. Bridging visas allow you to lawfully remain in Australia until a final decision is made in respect of the pending visa you have applied for after your visa cancellation.

If you can lodge an immediate application to appeal a decision that has been made to cancel your visa, then you will be able to typically stay in Australia until a decision is made in relation to your appeal application.

You are only able to lawfully remain in Australia if you hold a current and valid visa, whether it be a bridging visa or a substantive visa. If you do not hold any visa then it is a requirement of Australian immigration laws that, if you come to the attention of the authorities, you must be detained.

Must I depart Australia if my visa is cancelled?

If your visa is cancelled then you always have the option to depart Australia voluntarily.  However, before making any decisions, you should seek independent immigration law advice.

You may discover that you do not have to depart Australia immediately or at all.  Your independent immigration law advisor would be able to advise you if you have appeal rights and whether you can exercise those rights. If so, your cancellation decision may be set aside or the decision to cancel your visa may be revoked.

Can I get access to my superannuation payments if my visa is cancelled?

Yes, if your visa is cancelled and you are departing Australia with no intention to return then you may have a basis on which you can request your superannuation balance be made available to you.

Typically, you are unable to access your superannuation balance until you reach retirement age but departing Australia permanently may provide a basis for you to access these funds. This is a matter not for your immigration lawyer or migration agent but rather for your accountant.

What visa conditions apply if my visa is cancelled?

If your visa has been cancelled and you hold no other visa, then no conditions are applicable because no visa is in effect. Once your visa is cancelled you are in a difficult position because you are unlawfully present in Australia and you should seek immediate immigration law advice.

If possible, you will need to make an application for a visa and then be granted a bridging visa to avoid being detained.

Sponsored employee’s visa cancelled – Consequences?

The cancellation of an employee’s visa will only affect the sponsoring employer if the sponsoring employer has failed to discharge its own obligations in respect of the sponsorship approval granted to them by the Department of Immigration.

This means that if an employee fails to comply with visa conditions, the consequences for the sponsoring employer would not be significant.  The sponsoring employer, if not complicit in the breach by the employee, is unlikely to have adverse sanctions imposed against them.

Is there a cessation of employment upon visa cancellation?

To properly answer this question you must reference the terms of the employment contract. I have seen many employment contracts where employment is conditional upon the employee holding a valid visa and any cancellation of that visa will likely trigger cessation of employment.

It is important to recognise that the cessation of employment might also occur without notice.

Can I request a cancellation of my visa?

Requesting the Department of Immigration to cancel a visa is quite difficult to do on an urgent basis, especially an employer-sponsored one such as a 457 visa or a 482 visa.

This might be very important for you to get done urgently as you are constrained by having to work with the sponsoring employer for such time as your 457 visa or your 482 visa is in effect.

Other than simply waiting for Immigration to move to cancel your visa (which has its own set of consequences for you if you then have a cancellation to deal with), a more palatable possibility is for you to lodge a further and new visa application and have that new visa granted. This will extinguish the 482 or 457 visa.

Can a registered migration agent cancel my visa?

Absolutely not. Your visa can only be cancelled by operation of law or by the positive action taken by an immigration decision-maker.  Your migration agent or authorised representative can not cancel your visa.

Indeed, if your former migration agent, representative or immigration lawyer wishes to threaten this course of action, then you should immediately seek independent legal advice because such conduct or threat of such conduct would be contrary to the law.

How do I cancel my ImmiAccount visa?

You can not cancel a visa yourself. You need to have the Department of Immigration cancel your visa. A fast way of getting your visa cancelled is to obtain another valid visa for Australia.

This works because you can only have one substantive visa at a time so at the time the new substantive visa is granted to you, the Department will cancel your current substantive visa.

For example, if you hold a 457 visa or a 482 visa and you wish to leave your employer, you could then lodge a visitor visa and upon the grant of your visitor visa application, your 457 visa or 482 visa would be extinguished. Of course, in this example, you would not have work rights. 

Can you cancel your visa application?

If you have lodged a visa application for Australia and then you change your mind about proceeding with that visa application, you cannot “cancel” that visa application. Rather you can simply withdraw that application before a decision is made on that application.

Be very careful before you withdraw any visa application because you might have been granted a bridging visa in association with the application you have made and any bridging visa you hold will usually expire after the withdrawal of any visa application.

Why was my visa cancelled?

In most cases you will typically receive a notice of the Department of Immigration’s intention to consider cancellation of your visa – this is called a NOICC. By taking a careful look at the notice you will be able to determine why your visa is to be considered for cancellation.

After your visa has in fact been cancelled, then you will usually receive a notification of cancellation or a decision record confirming the cancellation and the basis for the cancellation.  You should seek immediate immigration law advice if you find that you do not hold a valid visa and that it is likely that your visa was cancelled.

I also suggest seeking advice from an immigration lawyer before contacting the Department of Immigration because you will need to be fully informed about your rights in respect of the cancellation from an independent party.

If you do not hold any valid visa then you are liable for arrest and detention according to Australian Migration laws.  It would also be prudent to have your immigration law advisor investigate your current visa status on your behalf if that can be done immediately.

Of course, you will want to be sure to check the spam folder of your email inbox as cancellation decision records can often be found hidden in these folders.

Can a permanent resident visa be cancelled in Australia?

A permanent residence visa is simply just another visa and is liable for cancellation like any visa. Permanent resident visas are more difficult to cancel than temporary resident visas but permanent visas are cancelled all of the time.

A permanent residence visa can be cancelled whether or not you are in Australia at the relevant time or whether you are offshore at the relevant time of cancellation. The Department of Immigration may choose to take steps to cancel your visa whilst you are not in Australia because this will limit your appeal opportunities in most cases.

Accordingly, if you are concerned about having your visa cancelled then you should remain onshore so that you can maximise any opportunity for appeal rights.

How long does the cancellation of a visa take?

Visas can be cancelled without much notice, especially in cases of serious criminal conduct by the visa holder. However, in most cases, you will receive a notice of intention to consider cancellation and you will be given the opportunity to respond to this notice.

It may take three months (give or take a couple of months) in order to consider your response to the notice of intention to consider cancellation before moving to cancel your visa.

It is probably not a good idea to rush the Department of Immigration along while they are considering making this decision. There is no standard time frame in which immigration must make a decision in relation to your responses to their notice to you.

If the submissions you have made in relation to any notification from the Department lack substance or merit then of course your visa may be cancelled almost immediately.

How long does it take to cancel a visa?

The cancellation of a visa takes place at an instant in time however the period leading up to the decision to either cancel or refrain from cancelling a visa can take months.

What if I cancel my visa appointment with the Department?

If you do not turn up to an appointment that you have with the Department of Home Affairs then the Department may choose to proceed to take action in respect of the visa.

If you have a reasonable explanation for not being able to attend an appointment then you should present your reasons in writing to the case officer immediately after you become aware of your inability to attend.

How do I cancel my Australian visa application?

You may withdraw your visa application at any time before a decision is made on your pending application.  It is not possible to cancel an Australian visa by yourself. Cancellation occurs by operation of law or by positive action taken on the part of a case officer at the Department of Immigration. 

Is the Australian visa fee refundable if rejected?

It is usually impossible to get a refund of the visa application charge which is the fee that has been paid to the Department of Immigration at the time of making your application for an Australian visa.

In limited cases where the visa application is not able to be considered as a result of another decision, then you may have some scope to make an application for a refund of the visa application charge. However please understand that successful applications for a refund of visa application charges are extremely rare.

Can my visa be revoked?

Traditionally, in Australia, visas are not revoked. Instead, visas are said to be “cancelled.” The term revocation is often used in Australian immigration law when a visa has already been cancelled and you are seeking to make a request to revoke the decision that has already been made to cancel your visa.

Your visa cannot be revoked rather it is a cancellation decision that is typically “revoked.”

Can a cancelled visa be reinstated?

In some circumstances, it is possible for a visa that has been cancelled by the Department to be reinstated. Typically, a case officer will cancel a visa after an application is made for a review of that decision, perhaps to the Administrative Review Tribunal (ART).  The ART may then set aside the decision to cancel the visa, such that the visa might be said to be “reinstated.” Instead of “reinstated” it is better to describe the initial decision to cancel the visa as incorrect and to treat the later decision of the ART as if no cancellation ever occurred.

Can permanent residents get deported?

Yes, permanent residents of Australia can be deported. This is what usually happens after their permanent residence visa has been cancelled and they have exhausted all appeal rights.

Typically, if appeal rights are exhausted and their permanent residency visas are lost, then individuals will take steps to remove themselves from Australia.  Of course, in some cases, individuals will decide to stay or may not have the resources to exit on their own.

Under these circumstances, the individuals are likely to be detained and then ultimately assisted by immigration authorities to be forcibly removed from Australia.

Does my Australian permanent residency expire?

Once you have a permanent residence visa then it is technically possible to remain in Australia indefinitely. This is why it is called permanent residence. The difficulty is in relation to travelling abroad.

If you wanted to stay in Australia and never travel abroad then your permanent residency would not expire in the sense that you could stay in Australia forever.  However, what is often misunderstood is that five years after the permanent residence visa grant, the re-entry facility expires.

Therefore, if you were to exit and re-enter after the five-year mark without a valid visa for re-entry, you would most likely be denied.

Can your permanent residence be revoked?

It is often the case where a visa, even a permanent residency, is granted in circumstances that were not correct or circumstances that have changed such as that it is not appropriate nor according to law for the visa applicant to continue to hold permanent residency.

As an example, making false statements as part of the initial visa application or because of serial criminal conduct. Permanent resident visa applications are then cancelled (rather than revoked). The term “revocation” is used in limited circumstances where the decision to cancel the visa might be revoked after an application is made for the decision to be revoked.

Can my employer cancel my 457 visa?

The first thing to understand is that employers cannot cancel visas. Visas can only be cancelled by operation of law or by positive steps taken by Immigration decision-makers.

What is possible is that employers can provide information to the Department of Immigration with a view that the Department will then move to cancel your 457 visa or your 482 visa or other employer-sponsored visas.

Employer-sponsored visas are subject to nomination requirements and sponsorship requirements as well as conditions in respect of employment. Breach of any of these requirements may provide a basis for the Department to take action to cancel your employer-sponsored visa.

How long do I have to find another sponsor if my employer ends my contract?

There was a time when you had only 60 days in which to find another sponsor and transfer your subclass 457 visa from one employer to another employer.

This period of 60 days has changed to 90 days more recently, which means that Immigration is unlikely to begin working towards cancelling your visa until after a “grace” period of 90 days is allowed for you to find another sponsor who may be willing to lodge a fresh nomination to which to link your visa and thereby relieve you of your obligations in respect of your first sponsoring employer and for you to commence working lawfully for your second sponsoring employer.

Once an employee ceases employment with an employer under an employer-sponsored visa arrangement then that employee should not work for anyone else in Australia because their visa requires them to work only for the previously approved and nominating/sponsoring employer.

You should take care not to start work for the new employer until such time as the new employer has lodged a valid nomination and that nomination is approved and linked to your visa.

Most common reasons for a 186 visa cancellation

Where evidence comes to the attention of the Department of Immigration that sees a visa applicant or an employer-sponsor as providing false or misleading information about skills held by the applicant or false or misleading information about whether the applicant was in fact employed as agreed. This also applies to the approved nomination either under the previous employer-sponsored temporary visa or the employment contracts relied upon for the grant of these 186 permanent resident visas. Another reason for 186 visa cancellation might result from a bogus relationship between a primary and secondary applicant.

Most common reasons for a 187 visa cancellation

The most common reason is if you never start working in a regional area and try to persuade the department that you have made all efforts to work in that role. Your 187 visa will be cancelled unless there is evidence before the minister that all possible efforts were to implement the contract and additionally, if circumstances were completely beyond the employee’s control. Even then, there is a real chance that a case officer will exercise their discretion to make a finding that there was never any genuine position or any genuine employment for the applicant and the whole thing was a charade, executed to effect a visa outcome.

My visa’s cancelled! How many days can I stay in Australia?

Firstly you must understand that when your visa is cancelled then other visas you may hold including any bridging visa may also be cancelled.

It is usually the case at the time of cancellation that you will become an unlawful non-citizen in Australia. Australian laws require that if you are present in Australia and you do not hold permission to be here (a visa) then you are tagged as an “unlawful non-citizen” and you must be detained if you come to the attention of authorities while you are in Australia.

The most common way of extending your stay after a visa cancellation is to appeal against the decision to cancel your visa. In most cases this appeal of made to be the ART however different rules apply depending on the basis or grounds for your visa cancellation.

The simple step of making an application for appeal will not mean that you are granted permission to stay longer in Australia. You should take the very important step to make an application for a visa that allows you to stay in Australia until a final decision is made on any review of the cancellation. One common mistake that applicants make is that they believe they automatically have an opportunity to appeal.

How to appeal visa cancellation?

Firstly any notification of cancellation of a visa will usually be accompanied by a letter from the Department Of Immigration explaining to you how you could possibly appeal the cancellation of your visa. It is important to read carefully but also to understand that it is not uncommon for letters to be incorrect in terms of the advice provided in them about appeal rights. It is also possible for these letters to be incomplete in that they might not give you ALL of the options… only some of the options available to you. For this reason, it is important to speak to an immigration lawyer about any steps you should take immediately after a visa cancellation.

The most common type of appeal against a visa cancellation is to appeal to the Administrative Review Tribunal (ART). You will be required to pay a fee at the time of making the application in order for the Tribunal to accept the application however there are limited circumstances where you can negotiate to have this application fee reduced.

The applications are now done electronically and after you have received an acknowledgment of the filing of the application for the appeal, this will give you a basis with which to apply for the grant of a bridging visa from the Department of Immigration, so that your unlawful status is regulated and you are then no longer liable for arrest and detention.

You should do so quickly as the deadline for appealing against a visa cancellation is usually significantly shorter than the deadline for appealing against a visa refusal.

Section 501 Visa Cancellations for Criminal Records

If you have a criminal record, things look grim since 2015. MANDATORY CANCELLATION applies when you have conviction terms (sentences) if added together, totalling more than 12 months.

Immigration laws change faster than almost every other field of law. Immigration lawyers advising people with criminal records need to be very familiar with recent changes and policies.

Visa cancellations under section 501 of the Migration Act are now, by far, the scariest issue facing visa applicants who have a criminal record.

New Criminal Deportation Focus

Many visas have been cancelled since Ministerial Direction (Direction 65) was re-issued in December 2014. We’ve seen record numbers of visa cancellation cases because of criminal records.

When does s501 Visa Cancellation kick in?

Once the total of all of your criminal convictions equals or exceeds 12 months, this triggers the power under section 501 for the Minister to cancel your visa. It is just a matter of time before you’ll be served with a notice asking you why your visa should not be cancelled.

I can help with submissions as to why a visa that has been cancelled by a delegate of the Minister should be revoked.

Urgent revocation submissions are possible if the Minister has not acted personally to cancel the visa.

If the revocation of a visa cancellation is not allowed (eg. if the Minister decides to exercise the section 501 visa cancellation power personally) then it may be possible to make an application to the Federal Court of Australia to have the decision quashed for being legally unreasonable.

Only legally unreasonable decisions of the Minister will be struck down by the courts…And the courts have had a lot of opportunities to explore what is “within” the Minister’s power and “outside” his power.

The Minister must act “legally reasonably” when cancelling a visa. What is a ‘legally reasonable’ decision was considered in the case of Mas Eden v The Minister for Immigration in 2015 and on appeal in 2016? I represented Mas Eden on both occasions.

I was successful in the visa cancellation appeal of Amoorthum v Minister for Immigration. Clarel Amoorthum had his visa refused personally by the Minister after failing the character test. The decision to cancel was found to be legally unreasonable by His Honour Justice Tracey in the Federal Court of Australia in 2016.

Another case in which I represented a visa applicant who has had their visa cancelled under section 501 power is The Minister for Immigration v Tam Thi Le. My win in this case before the Federal Court of Australia was appealed by the Minister. A decision was handed down in 2016 by the Full Court of the Federal Court of Australia and is of particular interest to anyone who was ever granted residence based on being a refugee.

A case worth noting is EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 395 ALR 36; [2021] FCAFC 173. This is a case that is particularly important for clients who are incarcerated, and the timing of a response depends on matters outside of the prisoner’s control. The Federal Court in EPL20 invalidated a finding of the Administrative Review Tribunal (ART) that it lacked jurisdiction to consider the applicant’s submissions due to untimeliness. When the Minister invites you to respond to a visa refusal or cancellation within a certain time period, the letter must “crystallize” when the notice was received; it must not be left to chance.

Section 501 Visa Cancellation Tips

# 1 – Make sure that your submissions are well presented if your visa has been cancelled under Section 501 – you have one big chance to make a difference to any cancellation decision.

#2 – The best time to act is early – ideally when you receive a notice of intention to consider cancellation of your visa. If this is not possible, you’ll need to know whether an application for revocation of a visa that has already been cancelled, is possible.

#3 – If you have run out of time, as Mas Eden, Clarel Amoorthum, and Tam Thi Le all did, there may still be scope to lodge an application out of time. I’ve done this in all three of these 501 visa cancellation cases but you must have an arguable case, a reasonable explanation for the delay, and show there is no prejudice against the Minister.

Call MyVisa to discuss your circumstances and what options you have.

Article on Section 501

Article: Sex offender David Degning loses court battle against deportation: Visa cancelled under Section 501 of the Migration Act

Sex offender David Degning loses court battle against deportation – application to the Federal Court unsuccessful – procedural fairness in Section 501 cases considered.

https://flip.it/NsgViU

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