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Visa Cancellation Australia

The Department of Immigration and Border Protection (DIBP) may cancel any permanent or temporary visa on a number of grounds. If the visa holder breaches the visa conditions, identifies character issues, obtained a visa in regards to a circumstance that no longer exists, and provide bogus or false documents, DIBP can cancel the visa.

One of the primary reasons for visa cancellation is the holder does not pass the character test. The visa holder or applicant does not pass the character test in any of the following situations:

  • They have a substantial criminal record
  • Have associated/association with people, a group, or an organisation with that is involved in or suspected to be involved in criminal activities
  • At high risk of engaging in unacceptable conduct in the future
  • Not a good character by considering the present or past criminal or general conduct

Keep in mind that a person with a substantial criminal record is an individual who is sentenced to imprisonment for 12 months or more, or sentenced to a number of shorter periods that add up to two years or more, or found not guilty due to mental illness and being detained.

What To Expect If My Visa Is Cancelled?

If your visa is cancelled, the following things take immediate effect:

  • You can’t stay in Australia unless you get another visa type
  • You can’t apply for any other visa type except a bridging visa or a protection (refugee) visa
  • Immediately after completing your prison term, you will be removed from Australia and sent back to the country of your citizenship
  • Once you are removed from Australia, you can’t return to the country

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    How Does The Cancellation Of A Visa Works?

    Usually it is a three-step process, and it begins when the Department of Home Affairs (DHA) is getting a notification that you have a substantial criminal record. Usually, this notification process occurs while you are in prison. Generally, the DHA doesn’t start the cancellation process until the last six months of the visa holder’s sentence. However, the DHA has the provisions to cancel the visa of an individual anytime while the holder is in prison or after release.

    In the second step, you will get a Notice of Intention from the DHA to consider cancellation. This notice means that the DHA is actively considering cancelling your visa. Importantly, you will get an opportunity to tell them why they should not cancel your visa. Keep in mind that the Minister of Immigration and Citizenship also has the provision to cancel your visa. The Minister makes a personal decision and not by a DHA officer. Since the Minister has a different cancellation process, there is no option for an appeal to the Administrative Appeal Tribunal (AAT) challenging the Minster’s cancellation.

    In the third step, the DHA cancels the visa and sends you a notification of the visa cancellation. This indicates that your visa is cancelled.

    What To Do After Your Visa Gets Cancelled

    You can make a review request to the AAT, regardless of if you have a subclass 457 visa cancellation or any other temporary or permanent visa cancellation. Keep in mind that you can only apply for a review if the visa is cancelled by DHA. Importantly, you must apply for the review within nine days from the day you deemed to be notified of the visa decision.

    You need to complete the following steps to review the decision:

    • Complete the Review of Decision form. You can request the AAT to send this form to you. After filling, you can forward it to the AAT by fax or post.
    • You should prepare your documents. Don’t forget to send a copy of the following along with the application to the AAT:
      • The Notice of Visa Cancellation
      • All the documents you received from DHA with your Notice of Visa Cancellation
    • Pay the application fee.

    No matter if you want to manage your or your partner visa cancellation, get Southern Stone expert advice or assistance. You can represent yourself in front of the AAT. However, a visa cancellations lawyer can help you with some helpful tips beforehand. If you are less confident speaking English, make a request with the AAT for an interpreter.

    Calculating The Time Limit For A Review

    Note that the time limit of nine days is not from the actual date you received the notification but the date you are deemed to receive the notification.

    If the Visa Cancellation notification was posted to you, then the time limit for applying for a review is seven working days (excluding weekends and any public holidays) from the date given on the notice. This means that you have nine days – including Saturday and Sunday – from the date mentioned in the notice to file the review. If the ninth day is falling on a weekend or public holiday, you have the option to make the review request on the next working day.

    On the other hand, if you have received the Visa Cancellation notice by hand, email, or fax, the next day by which you received the notice is considered to be the deemed of receiving the notice. Similar to the procedure of a posted Visa Cancellation notification, you get nine days (including weekends) to lodge your review application to the AAT. If the ninth day is falling on a weekend or public holiday, you are allowed to file the review on the next working day.

    You cannot ask for additional time to file the review application, unless there is something wrong in the Visa Cancellation notice or the way you have received it. However, this does not happen frequently. But if this happens to you, get legal advice immediately.

    Before Going To The AAT Hearing

    While lodging the review application, you will get a file number, and you should tell the AAT your file number if contact them about anything in regards to the application form. After filing the application, you will be given a strict timeline for submitting additional supporting evidence or information to challenge the visa decision. Remember that it is extremely difficult to get an extension for this time limit.

    The AAT has a deadline of 84 days to make a decision from the date you deemed to have notified about the cancellation. If the AAT could not make a decision within 84 days, the DHA’s decision to cancel your visa will continue to be effective. That means the AAT cannot change the decision of the DHA.

    Before the final hearing, you will have directions hearing from the AAT. An AAT officer will explain the following to you at the directions hearing:

    • The final hearing process
    • Ensure that you fully understand what you should do to get ready for the final hearing
    • Ensure that you understand when you should provide your written evidence
    • Set a date for the final hearing

    The directions hearing is usually completed by phone and is usually short. There are situations where legal issues also need to be communicated during the directions hearing. In such cases, a lawyer usually represents the DHA at the AAT, and you will get the contact details of the lawyer that allow you to send your evidence to them.

    At the directions hearing, you should make a note of the date of the final hearing and the date by which you should send the evidence to the DHA and the AAT. Importantly, you can contact the AAT a few days before the final hearing to arrange an interpreter for you or your witness if required.

    Submitting Evidence For The Final Hearing

    You can submit statements, letters of support, medical and other reports, and affidavits as evidence. This can also include the documents you have submitted to the DHA while responding to the Consider Cancellation notice of your visa.

    While submitting the evidence to the AAT, you must also give copies to the DHA. You must submit the evidence at least two working days before the final hearing date. You or a witness should prepare a statement that includes the facts and information you want to tell the AAT, put the sign and date at the end, and submit it to the AAT. Also, you or any of your witnesses can give evidence at the hearing.

    If you or any of your witnesses wants to give evidence at the hearing, a letter or statement must be submitted to the AAT and the DHA at least two days before the hearing.

    When will I be removed from Australia?

    Since your visa is cancelled, you will be removed or deported as soon as possible. If you have completed the custodial part of your sentence, the DHA will initiate the steps to send you back to your country of origin or citizenship. However, if you have applied for a review of the visa decision to the AAT, you won’t be removed until the AAT decision comes.

    If you have not applied for a review or to the AAT or the AAT affirmed the decision of the DHA, then no other procedure is left for you to remain in Australia in most cases. Sometimes, you can approach the court to challenge the decision, but that is not easy to do.

    What Happens After I Am Removed From Australia?

    Since your visa is cancelled and removed from Australia, you will be sent back to your country of citizenship. Additionally, you may be given some money, transport, and clothing costs, and help with accommodation as “post-return support”. Once you are sent back from Australia after visa cancellation, you will not be able to return to the country.

    Contact Us Today

    We can assist you with partner visa, skilled independent visa, subclass 190, employer sponsored visa and more. If you have any specific questions or want to know more about the relevant procedures, feel free to talk to our expert visa consultants and visa cancellations lawyers. Call us on 1300 188 999 or use our contact form to schedule an appointment.

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