Visa Cancellations and Refusals
You recently received a letter from the Department of Home Affairs (‘Department), and it says they are about to cancel your visa? You provided incorrect information or bogus documents for your current or previous visa or current visa application pending the Department’s decision?
Visa Cancellations and Refusals are on the rise in Australia. If you're an immigrant, it's important to know your rights and what to do if your visa is cancelled or refused. This article will explain the process for appealing a visa refusal or cancellation, and provide some tips on how to increase your chances of having your application approved.
The Department usually notify you of their intention to cancel your visa under s 109 of the Migration Act 1958 (‘Act’) before it is cancelled. This is usually in the form of a formal request with reasons why it intends to cancel your visa. This will tell you what responses are sought from you and by when the responses are to be provided to the Department.
There are a few ways to respond to the request; namely:
Successfully defend any allegations specified in the letter by responding to the formal request; or
Appealing their decision to AAT (if a decision is made against you); or
If you do not respond to the request or responded but not satisfactorily, you will run the risk of getting your visa cancelled or refused. Once your visa is cancelled or refused, your ability to apply for your further visa will be severally limited and even your current visa or current visa application pending a decision will be cancelled or refused.
Legal consequences include such as so-called section 48 bar, being subject to PIC4020.
Relevant provisions of the Act provides as follows:
Section 108 requires the Minister to consider any response from the visa-holder before making a decision on cancellation;
Section 109 permits the Minister to cancel a visa where the applicant has provided incorrect information or a bogus document, or has failed to answer all questions on their application form or passenger card or has failed to inform the Department of a relevant change in circumstances. The grounds for cancellation under this power are at sections 101 to 105 and subsection 107(2) of the Act.
Section 111 provides that ‘to avoid doubt, sections 107, 108 and 109 apply whether the non-compliance was deliberate or inadvertent’. That is, it is not necessary for the purposes of cancellation under section 109 that the visa-holder deliberately misled the Department;
Section 112 provides that:
the existence of the notice does not prevent another section 107 notice from being served with respect to a different instance of non-compliance - section 112(1); and
failure to cancel a visa under section 109 because of one instance of non-compliance does not prevent later cancellation under section 109 because of a different instance of non-compliance - section112(2).
Consequences of a Visa Cancellation or refusal
Section 48 bar
As your visa is cancelled, you are severely limited by s 48 of the Act in applying for any further visas whilst you remain in Australia without a substantive visa.
What is PIC4020: Non-grant periods due to Bogus and misleading information
Public Interest Criterion (PIC) 4020 is one of the requirement that needs to be satisfied before most Australian visas to be granted. You will not satisfy the PIC 4020 requirement if you have provided a bogus document or false and misleading information to the visa that you have held in the last 12 months, or if you have been refused a visa because you failed to satisfy PIC4020 in the last 3 years.
For example, if you apply for another substantive visa now, you will not be able to meet PIC 4020, which requires that you have not submitted false and misleading information in relation to a visa that you had held 12 months prior to the when the application was made. The only way to hand his is to apply for a waiver of PIC 4020 on the grounds that there are compassionate or compelling circumstances affecting the interests of an Australian citizen, permanent resident or eligible New Zealand citizen, or compelling circumstances affecting the interests of Australia.
Moreover, if you are refused a visa due to not being able to meet PIC 4020, you will be barred from being granted most substantive visas for a period of at least 3 years from the date of the refusal.
Further, PIC 4020 is a "one fail, all fail" condition. If you are refused a visa due to PIC4020, this will affect your partner's future ability to be granted a visa. PIC4020 requires that a visa applicant and each member of their family unit to not have been refused a visa due to an inability to satisfy PIC 4020 in the 3 years before an application was made.
It is also an offence under section 234 of the Migration Act 1958 (‘Act’) to provide false and misleading information in relation to a visa application. This offence carries a maximum penalty of 10 years imprisonment and/or 1,000 penalty units.
If you are convicted under section 234, usually the sentence given is low if it is managed properly i.e. there are mitigating factors that can be considered in criminal law. However, the substantial consequences come into play in relation to the operation of section 501 of the Act, which allows for cancellation of a visa on the basis of the visa holder's criminal record. This cancellation will occur mandatorily if you are given a sentence of 12 months or more.
Other consequences
If your visa is cancelled you will be in Australia unlawfully, unless you hold, or are granted another visa you can be subject to possible detention and removal from Australia.
Any BVA, BAB, or BVC you were granted in respect of any application lodged will also cease if your visa is cancelled.
If your visa is cancelled and you have family unit members (e.g a spouse/partner or child/ren) who hold visas because they were a member of your family unit, their visas will be automatically cancelled.
If another person (other than a family unit member who held a visa because they were a member of your family unit) holds a visa only because you hold a visa, then that person’s visa may be cancelled without notice.
If your visa is cancelled, other persons who have their visa cancelled because your visa was cancelled who are in Australia may be here unlawfully, unless they hold, or make a valid application for, and are granted, another visa. This has serious consequences including possible detention and removal from Australia. If they are outside Australia but travel to Australia without a valid visa, they will be refused immigration clearance and removed from Australia.
What to do next?
Contact us immediately! We have experienced lawyers with abundant experience in helping clients with these issues.
How can Agape Henry Crux Help You?
If you want to find out more, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.
We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.
This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact our office.