Immigration Lawyers and Migration Agents

Your Australian Visa Our Focus

There are several reasons why your Australian visa can be cancelled. 

The following scenarios are common:

• Cancelled due to breaching a visa condition.
• Cancelled on reasonable suspicion that conditions of the visa are being breached.
• Cancelled due to pending criminal charges.
• Cancelled due to providing false and misleading information.
• Cancelled due to failure of the character test.
• Student visa holders not meeting the requirements of their course or not being enrolled full time.

Visitor visa cancellation at the airport

Tourist visa holders are commonly caught by immigration officials for failing to declare their intentions for their visit or for bringing hazardous materials into Australia.

Recently, any visitor visa holder who breaches Australian biosecurity laws will have their visa cancelled and may be detained in immigration detention pending their removal from Australia. The cost of this removal will be met by the non-citizen.

Automatic cancellation of a visa

Your visa will be automatically cancelled if you meet the following criteria:

1. You are not a citizen of Australia; AND

2. you are currently serving a sentence of imprisonment in a custodial institution, on a full time basis for an offence against a law of the Commonwealth, State or Territory; AND

• while you have been in Australia you have been sentenced to a term of imprisonment for 12 months or more.

OR

• you have ever been convicted of a sexual offence against a child.

Cancellation process

An Australian visa can only be cancelled by the Department of Home Affairs or the visa holder writing to the Department to cancel their current visa. Any other third party cannot cancel your current visa.

You may receive a warning letter advising you that your visa may be cancelled. This is known as Notice of Intention to Consider Cancellation. If you receive this notice, you may choose to respond. As this notice is already a warning, it is best you seek legal advice upon first receiving this notice.

If you respond to the Notice and the Department accepts your response, then you will continue to hold a visa. If the Department does not accept your response or you do not respond then a Notice of Cancellation notice will be sent to you either by Post, Email or in Person.

My Visa is cancelled, what are my options?

If the decision is a discretionary visa cancellation

Once a Notice of Cancellation is received by you, it means you no longer hold a valid visa and you are considered unlawful. However you can appeal the decision in the Administrative Appeals Tribunal. During this time, you may be transferred to an immigration detention facility because you do not hold a visa.

If the decision is a mandatory visa cancellation

If your visa is cancelled automatically because of your criminal history then you will have 28 days from the date of the notice to request that the Minister reconsider the cancellation and revoke the decision.

You must make sure that your response reaches the Department in time. You must complete the Request for Revocation of a Mandatory Cancellation Under 501(3A) form within 28 days. Supporting evidence should also be given to support your claims in accordance with Ministerial Direction 79.

What if I have a visa application in processing at the time of my visa cancellation?

Cancellation decisions will, as a consequence, lead to any un-decided visa applications or visas held also being refused or cancelled. Any bridging visa you hold associated with a visa application will also be cancelled.

Visa cancellation trends

Data from the Department of Home Affairs shows that over a 12 month period there were 888 visa canceallations on character grounds alone. New Zealand nationals represented the greatest share of visa cancellations, however they also have the greatest representaion amongst visitor visa holders overall.   

Character cancellations undertaken from 1 January 2018 – 31 December 2018, By top 10 nationalities

Source: Department of Home Affairs

Do you need help with an Australian visa application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Partner Visas, Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956 or This email address is being protected from spambots. You need JavaScript enabled to view it.

Australian Visa Refusal Notification Options for the Appeal & Review Process (Tribunal & Ministerial Review) AAT - Judicial Review - Visa Rejection - Intervention - Policy - Obligations - Requirments - How to Re-Apply

2020 UPDATE for Partner Visa Processing Times is available here: https://www.workvisalawyers.com.au/news/all/2020-australian-partner-visa-processing-times.html

2018 Partner Visa Australian Processing Times For The 801 Visa. Refusals For Partner And Spouse 801 and 820 Visas Increasing. Why Your Partner/Spouse/Family Visa Is Taking A Long Time. 

2018 UPDATE For Partner Visa Processing Times: Increased Partner Visa Refusals for Partner Visa Subclass 801 and Partner visa subclass 820. Partner Visa Application Points Calculator and Changes That Affect Processing Times.

Australia Partner Visas continue to face long processing times and increased scrutiny by the DIBP

A recent query to the Department of Immigration and Border Protection (DIBP) in relation to a 2^nd stage Partner visa (subclass 801) application has resulted in the following response:

“The current processing time for Permanent Partner (subclass 801) visas is 12 to 18 months from your eligibility date.”

The processing times for the Temporary Partner (subclass 820) visas are also listed as 12 to 18 months on the DIBP website.

The eligibility date refers to the date you become eligible for processing of the permanent partner visa, which is usually just before two years after you lodged your initial partner visa application. You can find out if you are eligible by using the DIBP Partner (Permanent) Calculator.

This means that a typical partner visa applicant will have to:

• wait 12 to 18 months before the temporary partner (subclass 820) visa is granted
• wait another 6 to 12 months before you can apply for a permanent partner (subclass 801) visa
• wait another 12 to 18 months before you receive your permanent partner (subclass 801) visa

You will only receive a permanent partner (subclass 801) visa after 36 to 42 months’ (3 to 3.5 years) time!

Key terms: Visa cancellation – Migration Act 1958, s501 – Migration Act 1958, s116 – character issues – criminal charges – Commonwealth Ombudsman

The Commonwealth Ombudsman is the organisation responsible for handling complaints about Commonwealth Government departments and agencies. The Department of Immigration and Border Protection (DIBP) is one of the Government departments monitored by the Ombudsman.

In December 2016 the Ombudsman published two reports involving the DIBP, namely:

1. Administration of section 501 (hereafter the “section 501 report”)
2. The administration of people in immigration detention who have had their Bridging visa cancelled due to criminal charges or convictions (hereafter the “bridging visa cancellation report”)

Both reports identified shortcomings and issues with the DIBP process of cancelling long term Australian visas and bridging visas.

The section 501 Report

In the section 501 report it was noted that a similar investigation was carried out in 2006, which was critical of the then Department of Immigration and Multicultural Affairs (DIMA) for not “always provide(sic) the minister with all relevant information, especially mitigating information, about long term Australian residents when considering the cancellation of their visa”.

All you need to know and do when your visa application is refused!

Receiving a refusal notification for your visa application is stressful and places you in a wave of uncertainty. However, quick action is required to resolve your visa status if your visa application was lodged onshore in Australia.

The same can be said if you received a Notice of Intention to Consider Cancellation (NOICC) for your current visa. It is best to quickly address the issues raised in the NOICC, than to challenge the decision to cancel your visa after the decision has been made.

What are the common reasons for a visa application to be refused?

The Administrative Appeals Tribunal (AAT) is the organisation responsible for reviewing decisions made by the Australian government. The Migration and Refugee Division (MRD) is a division under the AAT which reviews Australia visa decisions. Typically applicants and visa holders will submit an application for review when their visa application is refused, or when their Australian visa is cancelled. Additionally the MRD also reviews decisions regarding sponsorship and nomination under employer sponsored visas. Citizenship application decisions are also reviewed by the MRD.

When a decision is being reviewed by the Tribunal one of the following results occur:

• the decision is affirmed (i.e. there are no changes)
• the decision is set aside (i.e. the decision is substituted with a new and different decision)
• the original application (visa/citizenship/sponsorship/nomination) is remitted (i.e. returned) to the Department of Immigration and Border Protection (DIBP) for reconsideration with recommendations by the Tribunal on additional factors to be considered
• the decision is varied

The AAT conducts a merits review which is explained as follows on the AAT website:

“Merits review is an administrative reconsideration of a case. A merits review body makes decisions within the same legislative framework as the primary decision maker, and may exercise all the powers and discretions conferred on the primary decision maker.”

The Tribunal reviews the application afresh and may also consider new evidence or information submitted with the review application.

The AAT is independent of the DIBP and has the powers to review and reverse (set aside) the decisions made by DIBP.

AAT-MRD Statistics for 2015-2016

In the 12 months from 1 July 2015 to 30 June 2016 the AAT-MRD received 14,307 applications for review. The reviewed decisions include those for all Australian visas (including bridging visas) and exclude refugee and humanitarian visas.

The majority of the decisions submitted for review are:

• Partner visas (29%)
• Student visas (17%)
• Visitor visas (13%)
• Temporary work visas (11%)

During the same period a total of 12,511 decisions were handed out to active review applications. Out of the 12,511 decisions handed out:

• 37% were set aside
• 44% were affirmed
• 12% were withdrawn
• 7% were not reviewed (no jurisdiction or the review application was not submitted in time)

Other interesting statistics include:

• 46% of Partner visa reviews resulted in DIBP decisions being set aside
• 31% of Student visa reviews resulted in DIBP decisions being set aside
• 51% of Visitor visa reviews resulted in DIBP decisions being set aside
• 26% of Temporary work visa reviews resulted in DIBP decisions being set aside
• 23% of Nomination or Sponsorship approval reviews resulted in DIBP decisions being set aside

Should I submit a review to the AAT for my visa/sponsorship application that was refused?

You can submit a review application only if you are entitled for review rights. The decision to lodge a review application to the AAT depends on the circumstances of the visa/sponsorship refusal. Some of the common grounds for refusals include:

Partner visas – Schedule 3 issues, failure to demonstrate genuine relationship

Student visas – Meeting the Genuine Temporary Entrant (GTE) requirement, lack of financial capacity

457, RSMS and ENS visas – Demonstrating genuine position

Visitor visas – Meeting the Genuine Temporary Entrant (GTE) requirement

At Work Visa Lawyers we will assess the original application and supporting documents submitted and advise if the prospects for review are favourable. The Decision Record received by the applicant will also be studied in detail to identify weak areas of the original application and how we can address them in the review application.

What are my chances of success with the AAT-MRD review?

The chances of obtaining a positive outcome from the Tribunal to set aside a DIBP decision require the following:

- a thorough analysis of the refusal Decision Record

- in-depth knowledge about the visa applied and the requirements

- assessing the applicant’s circumstances and ability to address the issues highlighted by the DIBP delegate when deciding on the refusal

In summary it should be considered whether the applicant can provide better evidence or information that will meet the visa application requirements. If the original application can be improved then the chances for success with the review will be increased.

Applicants with complicated circumstances should also note that submitting an AAT review application is a pathway towards ministerial intervention. You can only request for a ministerial intervention if you have received a decision from the AAT. You should be aware that the Minister only intervenes in a small amount of cases and you should have unique or exceptional circumstances before applying for a ministerial intervention.

You can find out more about ministerial interventions here.

Sources:

1. http://www.aat.gov.au/resources/statistics
2. http://www.aat.gov.au/AAT/media/AAT/Files/Statistics/2015-16/MRD-Detailed-Caseload-Statistics-2015-16.pdf
3. http://www.aat.gov.au/AAT/media/AAT/Files/Statistics/2015-16/MRD-Migration-Caseload-Statistics-2015-16.pdf

This information is accurate on 25 August 2016

Do you need help with an Australian visa application or Review Application?

At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.

If you require further information regarding your Australia visa options you can contact us through:

(08) 8351 9956 or +61 8 8351 9956

or   This email address is being protected from spambots. You need JavaScript enabled to view it.