Other Australian Specialist Areas:
Australian Visa Cancellation
All immigrants to Australia should understand the circumstances in which a visa can be cancelled and the consequences of such a cancellation.
Overview of Australian Visa Cancellation
Prior to the Migration Reform Act 1992, the Department of Immigration
had an unfettered discretion to cancel visas and temporary entry permits. Under the current legislation this power was replaced with a power to cancel visas for certain specified reasons.
The power to cancel a visa arises from:
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Cancellation under s.109
(Incorrect information or False document)
Incorrect information:
The Migration Act provides that the Minister may cancel a visa
if the grant of the visa was based on incorrect information. The
power to cancel in s.109 arises where the Department of Immigration
considers that the holder of a visa who has been immigration cleared:
- Either did not answer or answered incorrectly the questions
on the application form or passenger card or otherwise in connection
with a decision under sections of the Migration Act
- Gave a false document to a decision maker
- Failed to advise the Department if circumstances change so
that an answer given in an application form, or information
given, is no longer correct
- Failed to notify an officer that an answer given or information
given was incorrect when it was given
The Migration Act states that it does not matter whether or not
the person knew that the information supplied was incorrect. The
question of the person's knowledge of the falsity of a statement
may well be relevant, however, to the exercise of the discretion
to cancel.
False document:
A false document is one that the Department of Immigration reasonably
suspects:
- Was obtained because of a false or misleading statement, whether
or not made knowingly
- Is counterfeit or has been altered by a person without authority
to do so
- Claims to have been, but was not, issued for the person
The Department of Immigration has discretion to cancel the visa
after considering any response by the holder and circumstances
prescribed in the Migration Regulations. International human rights
instruments are also relevant to the exercise of the discretion.
If a person's visa is cancelled under section 109 or 116, visas
held by members of their family unit are also cancelled.
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Cancellation under s.116
The primary grounds for cancellation of a visa under section
116 are:
- The holder has not complied with a condition of the visa
- Circumstances which permitted the grant of the visa no longer
exist
- The presence of the holder in Australia is, or would be, a
risk to the health safety or good order of the Australian community
The Department of Immigration may cancel a visa if satisfied
that these grounds exist. The procedure is that notice must first
be given of the intention to cancel the visa and the holder given
an opportunity to respond.
The former Immigration Review Tribunal (IRT) has held that this
means that there is a discretion whether to cancel the visa once
it is established that the grounds for cancellation exist.
There is no legislative guidance for the exercise of the discretion,
although the Department of Immigration has policy guidelines,
which set out matters to which decision makers should have regard.
In addition to these matters, various international human rights
instruments also provide relevant matters for decision makers
to consider.
Section 116(3) provides that a visa must be cancelled in certain
circumstances. These include the failure of a student to comply
with condition 8202, which deals with the satisfaction of course
requirements.
A permanent visa cannot be cancelled under s.116 if the holder
has lawfully entered Australia. If the holder of a visa has not
entered Australia the visa can be cancelled without notice on
the grounds in s.116. Cancellation under this provision may be
revoked unless the ground for cancellation is one for which the
Department of Immigration must cancel the visa.
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Cancellation of Business Visas under s.134
The power applies to any visa class with the words 'Business
Skills' in its title, which at present includes visa subclasses
127, 128, 129, 130, 131, 840, 841, 842, 843, 844 and 845.
Cancellation of business visas and the cancellation of visas
on character grounds (s.501) are reviewable by the Administrative
Appeals Tribunal (AAT).
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Cancellation under s.501
Section 501 of the Migration Act contains grounds for the cancellation
of a visa where the Department of Immigration is satisfied that
the visa holder:
- Would be likely to engage in criminal conduct in Australia
- Would vilify a section of the Australian community
- Represents a danger to the Australian community
- Would incite discord in Australia
- Is 'not of good character'
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Australian Immigration Law Offences
The Migration Act contains a series of offences in relation to
entry into and remaining in Australia unlawfully and the making
of decisions under the Act. They include the offences of:
- Working in breach of a visa condition
- Presenting false documents or making false or misleading statements
to an officer
- Bringing non-citizens into or harbouring illegal entrants
in Australia
- Arranging a marriage to enable a person to obtain a visa,
provided that it is a defence to the charge for the defendant
to prove that he or she 'believed on reasonable grounds that
the marriage would result in a genuine and continuing marital
relationship'
- Taking part in a marriage arranged to secure a visa
- Making a false or misleading statement in support of a spouse
application
A prosecution for an offence against the Migration Act or Regulations
may be instituted at any time within five years after the commission
of that offence.
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