Preventing Visa Cancellation Kean Legal

Migration Law Blog Series (MLBS) 13 – Migration visas- Preventing the cancellation of your visa – (Part 1)

This is the thirteenth in a series of blogs that are focusing on Migration Law.

If you have a migration issue and you are not sure if it you should file or what documents to file, do not delay, please seek legal advice straight away. Do not wait until it is too late.

Nothing here should be taken as legal advice or a substitute for speaking to a lawyer from our office if you have any questions on 08 63238613. Unsure of what stage your matter is at, or what to do next? A solicitor form Kean Legal Barristers & Solicitors is ready to help.

By Mr Anthony J Aristei

Even though you might hold a valid visa, the Department of Home Affairs Immigration and Citizenship (“Migration Department”) has the power to cancel your visa at any time. This can come as shocking news when you have been advised of this. In this blog we will go through the circumstances when your visa can be cancelled and what you can do about it.

When can my visa can be cancelled?

Section 116 (1) of the Migration Act 1958 (Cth) (‘Migration Act’) outlines the circumstances whereby the Department of Home Affairs Immigration and Citizenship (“Migration Department”) can cancel a visa.

The most common grounds for cancellation are that:

  1. the grant of your visa was based upon facts or circumstances that no longer exist;
  1. you have not complied with a particular condition of your visa; or
  1. you provided misleading information which led to the grant of your visa.

As you can imagine, the Migration Department’s cancellation power may be applied to most kinds of substantive visas. For instance, it has been applied to student visas, spouse (or marriage) visas, and business visas.

Further, the cancellation can be imposed on a visa holder, whether he or she is onshore or offshore.

What can I do once I have been advised by the Migration Department?

The ‘good news’ is that your visa cannot be cancelled unless you have first received an opportunity to respond to the complaint against you by the Department of Home Affairs Immigration and Citizenship (“Migration Department”). 

Therefore, you will firstly receive a notice of proposed cancellation of your visa from the Migration Department: see section 119 of the Migration Act.

That Notice must provide you with particulars of the grounds why the Migration Department says your visa should be cancelled.

It must also provide you with a specified time-period to respond to those grounds.

You ordinarily have a relatively short time to provide a written response. The response must set out valid reasons why your visa should not be cancelled.

Further, the onus is upon you (not the Migration Department) to provide the facts and documents which will prevent the Migration Department from otherwise cancelling your ‘hard-earned’ visa.

The preparation of the response to the Department needs to be comprehensive. It must also specifically answer the grounds of complaint which have been raised. 

The issues to be addressed are often legal and technical. The representation and assistance of a legal practitioner is recommended in the circumstances.

Consequences of failing to respond

If your current visa is cancelled, this will have serious consequences as:

  • You will likely be required to leave the country;
  • You might be barred from making another substantive visa application; and
  • You may be prevented from obtaining a short- term visa that would otherwise allow you to enter, travel or stay in Australia.

If your visa has been cancelled, you have a general right to appeal to the Administrative Appeals Tribunal (‘AAT’) to overturn that decision.

The time- limit for the exercise of that right is ordinary detailed in a written notice which is provided to you by the Department of Home Affairs Immigration and Citizenship (“Migration Department”).

If you intend to appeal, you must take special care to lodge an appeal notice with the AAT before that time-limit has expired. The AAT does not ordinarily grant an extension of time after that date.

The preparation of an application to the AAT ordinarily requires the assistance of a legal firm with both legal experience and knowledge of migration law. If you have a problem or difficulty relating to your visa or application, we highly recommend that you speak to us to obtain legal advice and representation. We can be contacted on our 24/7 office number on: +61 8 6323 8697

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