Visa cancellation: The government is cracking down on visa holders who breach the conditions of their visa – whether intentionally or unintentionally. As a visa holder, it’s vital that you understand the conditions associated with your visa so you don’t risk your visa being cancelled.
In this blog, we outline the reasons why your visa may be cancelled, what to do if you receive a Notice of Intention to Consider Cancellation from the Department of Home Affairs and how an immigration specialist, such as TMA, can help.
The 3 main reasons a visa can be cancelled
- Breach of visa conditions
Every visa that’s granted has conditions associated with it. When visa holders breach the conditions that are imposed on their visas, it warrants grounds for the potential visa cancellation.
For example, a student visa allows a student to work for 20 hours a week (40 hours a fortnight) when school is in session, while an employer-sponsored visa may specify that you can only work for a specific employer doing specific duties.
If it comes to light at the Department of Home Affairs that a student visa holder has been working more than the allowed number of hours while school is in session, and there are no special exemptions in place, that would be grounds for your visa to potentially be cancelled.
- Your circumstances change
If your circumstances change, it may impact your entitlement to hold a particular visa and you could be at risk of visa cancellation.
Employer-sponsored visa: For example, under certain employer-sponsored visas, if a visa holder ceases to work with the nominated employer for more than 60 days, this a change in circumstances which may breach their visa conditions. They may no longer meet the grounds granted for that particular visa, and therefore their visa may be cancelled.
Partner visa: This is another area where when circumstances change, it can be grounds for cancellation. If you’re no longer in a relationship with your sponsor (that is, your partner) before the visa application is finalised, or if you’re holding a temporary partner visa and have not yet been granted the permanent partner visa, your visa may be cancelled.
Student visa: If you’re no longer enrolled in study for a student visa, it is grounds for the visa being cancelled.
- Providing incorrect or false information
This is a breach that we have witnessed recently in the last 12 months. This breach is centred around providing incorrect or false information to the Department as part of a visa application.
Despite already granting a visa and the visa holder living and working in Australia on that visa, the Department can retrospectively cross check information that comes to light (for example, given in subsequent applications) to verify the information in the initial visa application at any time.
If in that verification process, it is found that you provided false information or you intentionally misled the Department in the claims you made in your visa application, that is grounds for cancellation.
The most common breaches we have seen under these circumstances include:
- False information in a work visa: If applying for a work visa, the Government can verify the information you have given against information given in previous applications. If incorrect information was given, your visa can be cancelled even after it has been approved.
For example, if it is a requirement to renew your working holiday visa that you complete regional work, but you haven’t and you say you have in your application, then your visa may be cancelled. Incorrect information is often detected in subsequent visa applications.
- False declarations as an incoming passenger: Information given in incoming passenger declarations is treated in a similar way to information given in a visa application – it must not be false or misleading.
For example, if you’re coming from one of the “green flag” countries (where visa approval is quicker) but you give false declarations about your travel history as an incoming passenger, this can affect your chances of obtaining a new visa while you’re in Australia.
Any information that you are providing to the Department of Home Affairs must be correct, accurate and honest.
There is more information about visa cancellation on the Department of Home Affairs website.
What to do if you receive a Notice of Intention to Consider Cancellation
If you receive a Notice of Intention to Consider Cancellation, get in touch with a reputable immigration law specialist, such as TMA, immediately.
The Notice of Intention to Consider Cancellation will outline the reasons why the Department intends to cancel your visa and it is imperative that you understand the reasons why your visa may be cancelled.
It’s at this point that the Department will afford you “natural justice” and you will have an opportunity to provide a response to the Notice of Intention to Consider Cancellation. This is an opportunity to provide compelling reasons as to why your visa should not be cancelled.
According to the Office of the Information Commission: “Natural justice is the right to be made aware of, and respond to, information which will be used in the course of a decision that will negatively affect the person.”
An immigration specialist, who understands the regulations and has access to the Department’s internal policies, will help you gain clarity as they can see the big picture of your immigration options, for example, the reasons for cancellation, arguments that can be made to avoid cancellation, a strategy to move forward with alternative visa options, and your future prospects as a migrant in Australia.
You will have a certain timeframe to provide a response, and it is important that you respond within this timeframe otherwise your visa will be cancelled.
Once you have provided a response, the case officer will review the information you’ve provided, consider the particular circumstances and whether there are discretional grounds not to cancel, and make a decision based on the weight of each response you have given.
What to do if your visa is cancelled
If your visa is cancelled by the Department of Home Affairs it will impact your stay in Australia as you immediately become “unlawful”. When you are considered unlawful there’s a very limited number of visas that you could apply for – and your best chance of remaining in Australia is to enlist the help of a immigration law specialist, such as TMA.
Visas you can apply for if you are considered “unlawful”
There are only a handful of visas you may be eligible for if you are considered unlawful. They include (but are not limited to): A protection visa, partner visa or potentially a bridging visa.
There are also implications to departing after a cancellation. For example, if you leave Australia, either by visa cancellation or by removal notice you may potentially be subject to an entry ban if you apply for a visa in the future.
Case study: TMA successfully helps visa holder with Notice of Intention to Consider Cancellation
TMA recently worked with a client who had come to Australia on a working holiday visa, and who had then applied for an employee-sponsored visa to stay in the country long-term. It was during this application process, that he received a Notice of Intention to Consider Cancellation from the Department of Home Affairs on the grounds that he had provided false information in a previous visa application.
He had spoken to other immigration specialists who were unable to give him an alternative strategy to stay in Australia.
While he had provided false information on the application, by speaking with TMA before his visa was cancelled, we were able to respond to the notice and present a strong case, while also devising a number of strategies to mitigate the risks associated with the cancellation of this visa.
In the end, while we did present a strong case on the grounds that it should not be cancelled, the Department moved to cancel the visa giving significant weight to the fact that the client had provided false information, including bogus documentation.
However, TMA had also applied for a partner visa for the client and his Australian partner while he still held a valid visa. We were then able to prepare a bridging visa and seek work rights, which allowed him to live and work in Australia while the partner visa application is being processed.
Our client’s journey is by no means over, there remains a lot more work to do to secure the grant of a partner visa while onshore, however, he is able to stay in Australia with his Australian partner while working for his employer while the partner visa is processed.
Other points to consider when visa conditions are breached
A breach in a previous visa application could still have implications for a future visa application, and even citizenship. For example, the Department of Home Affairs may issue a Notice of Intention to Refuse where it may specify that an applicant did not meet certain Public Interest Criteria (PIC 4020), which applies to any visa held in the 12 months prior to lodging a new application.
Providing false information on a visa application may also have implications as far reaching as future citizenship.
And that’s why having an immigration law specialist, such as TMA, is important in such circumstances because we can manage the situation for you.
Work with TMA today
If you have queries about your visa cancellation, or you have received a Notice of Intention to Consider Cancellation, get in touch with TMA today so our specialist immigration experts can help you navigate the situation with your best interests in mind.
