Does the Immigration Department Intend to Cancel Your Australian Visa? Or Has Your Visa Just Been Cancelled?

You may have just received a letter which is called a “Notice of Intention to Consider Cancellation” of your visa. Alternatively, you might be one step further in the process, and you might have received a “Notice of Cancellation” together with a “Decision Record” which outlines the reasons for cancellation.

Notice of Intention to Consider Cancellation

Australian visas are all subject to conditions which visa holders must comply with. If you breach any of those conditions, the visa may be cancelled. In most cases, if there are grounds for cancellation, the Immigration Department can decide if they will cancel your visa, or if they let you keep your visa despite breaching a visa condition.

In most cases, the first step is that you receive a letter called “Notice of Intention to Consider Cancellation”. Here is what this letter is about:

It gives you notice that your visa may be cancelled very soon. The letter is the official notification from the Immigration Department that your visa is being considered for cancellation.

It outlines the reasons for cancellation. The Immigration Department can’t just cancel your visa without good reason. So they have to tell you the reasons why they believe your visa can be cancelled.

It’s your chance to respond. If you believe that there are no grounds for cancellation, or even though there are grounds, the visa should still not be cancelled, this is the time to put forward your position in your response to the Immigration Department.

Timeframe to Respond

The Notice of Intention to Consider Cancellation will include a time limit for you to respond and tell the Immigration Department why your visa should not be cancelled. Make sure you don’t miss this time limit, because as soon as it expires, Immigration can cancel your visa.

What Should You Say to Immigration?

This depends on the facts of your case. For example, if you are a student visa holder, and Immigration says you have not enrolled in your school, then you will need to think of reasons why you could not enroll (such as illness or injury). Or if you have committed an offence, Immigration might say that you are a danger to the community. In that case you might consider providing evidence that shows you do not pose a risk to the community.

Should You Engage a Lawyer at this Stage?

There is no obligation to engage a lawyer, and many people don’t engage a lawyer to respond to Immigration. However, you should be aware of the following:

Investing in legal fees now can save you money in the long run. If you hire a lawyer to respond to Immigration, it will undoubtedly cost you money. But with a lawyer you have a better chance to stop the visa cancellation at this early stage. Getting a lawyer to respond to Immigration is cheaper than hiring a lawyer to represent you in a subsequent visa appeal.

Everything you say may be used against you later. Once you respond to Immigration, your response is in the official record. If you say something that hurts your case it will be used against you. So it may be better to have a lawyer respond on your behalf to ensure your rights are protected and your response does not hurt your own position.

What Happens After You Respond To Immigration?

The case officer will make a decision. In some cases, the decision will be made relatively quickly, meaning about 2 weeks to 1 month. In more complex cases, it can take longer. We have been involved in matters where it took Immigration over 1 year to make a decision after they received a response to the Notice of Intention to Consider Cancellation.

If Immigration agrees with your position, then they will not cancel your visa, but might give you a warning that next time the outcome might be different. If Immigration disagrees with your position, they will cancel your visa.

Strategies to Stop Cancellation

We have posted a number of videos on our YouTube channel about visa cancellations. Here is an example in which Oszkar Denes, Immigration Lawyer, explains some strategies which you might consider adopting in order to stop the cancellation process.

Visa Cancelled – Now What?

If Immigration has decided to cancel your visa, this does not necessarily mean that you don’t have any options. What is available in your case depends on the grounds of cancellation, and also on your objectives.

Consequence of Cancellation: You Don’t Have a Visa

Once your visa has been cancelled, you no longer hold a visa. This is important because in Australia, everyone who does not have Australian citizenship must hold a valid visa. If they don’t, they can be held in Immigration Detention.

So the first issue to consider is to get you a visa to prevent Immigration from detaining you. There are a number of possibilities at this point:

If you simply want to leave Australia but need more time. Let’s say you just want to leave Australia, but need a little more time to finalise your affairs. For example, you might have to sell your furniture, get a new passport, save up for an airplane ticket. The Immigration Department will likely grant you a Bridging Visa E to allow you to temporarily stay and finish all your outstanding business. In some cases, a Bridging Visa E also enables you to work. If you hold this visa, this means you are not “illegal” and you are not liable to be detained.

You can appeal the cancellation decision and get a visa. If you decide to appeal the cancellation decision, then as long as you lodge your appeal on time, you will be eligible for a Bridging Visa E for the duration of your appeal. We have a detailed appeals page which you should read for more information.

Cancellation on character grounds. If your visa has been cancelled because you have failed the character test – also known as section 501 cancellation – then you can still appeal the decision, but you cannot be granted another visa unless and until your appeal is successful. This means you will be detained for the duration of your appeal, however your appeal will be processed faster, specifically, within 84 days.

Other Consequences

There are additional consequences of a visa cancellation. Two of the most important are: you are unlikely to be able to apply for a new visa in Australia (there are some exceptions). Further, Public Interest Criteria (PIC) 4013 will likely apply to you when you apply for a visa in the future. If PIC 4013 applies to you, this would prevent you from applying for certain visas for 3 years.

I Want to Appeal the Cancellation – What Do I Do?

The first thing you need to remember is that there are strict time limits to lodge your appeal. The applicable time limit depends on why your visa was cancelled. Please read the cancellation decision very carefully because the time limit is set out there.

Secondly, the appeals process varies as well:

If your visa was cancelled on character grounds. Your appeal will be heard by the General Division of the Administrative Appeals Tribunal, and the Immigration Department will be legally represented and will oppose your appeal. The process is very much like a court trial seen on tv. The proceeding will take 84 days from start to finish. If you want to download our FREE book on this very topic, please click here. And If you would like to read an example of an official decision in which we successfully defended a previous visa holder, click here.

The cancellation was not based on character grounds. Your appeal will be heard by the Migration and Refugee Division of the AAT. The process takes much longer, but you are not held in detention.