Australian Visa Cancellation
Read our general information in relation to appeals to visa cancellations below. Contact us directly for specific advice.
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 under the “charater” 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 on the basis of 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 invite them to apply for revocation of the cancellation decision
- Please see our cancellation page for further details, or contact your Hannan Tew representative
Time Limit
- The time limits to lodge an application for review varies depending on the type of decision, and whether the person is in immigration detention
- Generally speaking, decisions to refuse / cancel a visa on the basis of 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 on the basis of character costs $1,011
- The fee may be reduced to $100 in certain circumstances
- If the review is favourable to the applicant, the entire amount would be refunded less $100
Overview
General Visa Cancellation
Aside from “character” based cancellation decisions, the Department also have “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 utilised 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 exists;
- 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. If 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 Review Tribunal (formerly 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
The Department can take steps to cancel either a temporary or permanent visa that has already been granted for reasons of character. Typically this would occur in circumstances where a person did not disclose prior offences (and the Department subsequently discover these), or where a person is convicted of offences after the visa has already been granted. We also have an article here, which outlines what happens if a visa is being considered for cancellation due to character.
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 Review Tribunal varies 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 Review 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 on the basis of character costs $1,011. This may be reduced to $100 in certain circumstances.
If the review is favourable to the applicant, the entire amount would be refunded less $100.
Cancellations
Frequently Asked Questions
Can a visa be cancelled after approval?
Yes – the Migration Act has provisions which allow for the cancellation of both temporary and permanent visas after they have been granted. Typically they can be cancelled for reasons of “character”, or broader “general” cancellation powers (for example if bogus documents or false or misleading information was used which led to the grant of the visa, if incorrect answers were provided in the application, or if the visa holder has breached their visa conditions).
Can a permanent partner visa be cancelled in Australia?
It depends why, but it is technically possible for permanent Partner visas to be cancelled. If your relationship ceases after the Partner visa is granted, then your visa would not be cancelled. However, if your relationship ceased before the grant of the permanent Partner visa, or it was discovered that your relationship was not genuine, then your permanent Partner visa could be cancelled.
How do I know if my visa is cancelled?
In most cases, the Department will provide you with written notice that your visa has been cancelled. If your contact details have changed you may not receive this, in which case you can conduct a Visa Entitlement Verification Online (VEVO) check on yourself (see here) to see if your visa is still valid.
Can my employer cancel my visa?
No. Only the Department of Home Affairs (the Department) can formally cancel your visa. If you are in Australia on an employer-sponsored work visa (such as the Skills in Demand (SID) Subclass 482 visa or the Skilled Employer Sponsored Regional (SESR) Subclass 494 visa and cease employment, your employer has an obligation to notify the Department that you have ceased employment with them. The Department may then take steps to cancel your visa.
Can I appeal a character visa cancellation decision?
Character cancellations may be reviewed at the Administrative Review Tribunal (formerly the Administrative Appeals Tribunal). Where the Minister personally cancels your visa, they will typically invite you to make representations about revoking that cancellation. A revocation decision may be appealed to the Federal Circuit and Family Court of Australia.
Can I appeal a general (non-character) visa cancellation decision?
A decision to cancel a visa is typically reviewable to the Administrative Review Tribunal (formerly the Administrative Appeals Tribunal). In certain circumstances, you may also be invited to apply for revocation at first instance before appealing to the Tribunal.
How long do I have to appeal?
Please see the section “Time Limit” under the relevant tabs. These time frames vary depending on whether the cancellation decision is under the “general” or “character” provisions.
How much does it cost?
Currently, the Tribunal application fee is $3,496 for general cancellation decisions. Character cancellations cost $1,121.
How long does the appeals process take?
Please see the section “How long will this process take?” under the ‘Process” tab. Unfortunately, a lot of appeals are currently taking several months (even years) to process.
What happens if my visa is cancelled?
If a decision is made to cancel your visa, it would apply immediately. If you are in Australia at the time of the decision, you would become an “unlawful non-citizen” and liable to be detained. There may also be consequences on your ability to apply for future visas to Australia, which differ depending on what basis your visa was cancelled.
What happens if I'm successful in defending a cancellation?
If your visa was not cancelled, then you would remain on the same visa. Your visa could still be liable for cancellation based on future events/actions. If your visa was first cancelled, and then the cancellation decision was revoked, then you would be treated as having held that visa the entire time.
Disclaimer
The information contained here is offered for informational purposes only and does not constitute legal advice or give rise to an attorney-client relationship between you and our firm. The information: (i) must be regarded as a practical guide for general information and not a process guide for determining the specific immigration requirements of the countries covered, (ii) should not be a substitute for a more indepth analysis of applicable facts and circumstances conducted by competent professionals, and (iii) does not represent an opinion from Hannan Tew or any of its agents with regard to the laws of any of the jurisdictions concerned. The information does not guarantee the outcome or approval of any particular immigration application.
What can we do for you?
As a full service immigration law firm, our experienced team can provide guidance on cancellation matters.
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