Visa Cancellation
Section 501 Visa Cancellation
Section 116 Visa Cancellation
Immigration Detention
There are several reasons your Australian Visa might be cancelled.
Find out what they are and if you are able to appeal the cancellation.
Section 501 Visa Cancellation
Under section 501 Migration Act, the Minister has the power to refuse or cancel a visa if they are not satisfied that a person passes the character test. This is known as a section 501 cancellation or a character cancellation.
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GROUNDS FOR SECTION 501 CANCELLATION:
The 501 cancellation power is generally a discretionary power. However, the Minister MUST cancel your visa if you are currently in prison and you have:
- A substantial criminal record, or
- Been convicted of a sexually based offence against a child
All visa holders and visa applicants can be affected by section 501 cancellation. It does not matter how long you have held your visa for, even if you came to Australia as a child or you were born here.
THE CHARACTER TEST:
Section 501 Migration Act outlines the character test. The Minister will have regard to:
- Your past and present criminal conduct
- Your past and present general conduct
Reasons for 501 cancellation include, but are not limited to:
- You have a substantial criminal record
- You have been convicted of offences in Australia or overseas
- You have committed an offence while in immigration detention
- You have been in or associated with a criminal group, organisation or person
- You have been convicted in Australia or overseas with a war crime or crime against humanity
- You have been assessed by ASIO to be a risk to national security
- You have an Interpol notice in force against you
CAN YOU APPEAL THE SECTION 501 CANCELLATION?
You can appeal a 501 visa cancellation or refusal. Generally, a character cancellation can be appealed to the Administrative Appeals Tribunal (AAT), though there are exceptions to this. You will require legal representation at the AAT.
The appeal options should be outlined in your 501 cancellation or refusal decision notification from the Department of Home Affairs. If you have received a 501 cancellation or refusal, you should speak to a lawyer about the appeals process. Our expert migration lawyers can assist you in determining if you have grounds to appeal a decision, assist you with the appeals process and represent you at the AAT.
Section 116 Visa Cancellation
Section 116 Migration Act provides the Department with a broad range of visa cancellation powers. Your visa may be cancelled if you have committed a crime in Australia or have provided incorrect information on your application, among other reasons.
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GROUNDS FOR SECTION 116 CANCELLATION:
Reasons the Minister may cancel a visa under section 116 inlcude (but are not limited to):
- you have provided incorrect information for your current visa
- your circumstances have changed and you are no longer elibile for your visa
- your visa was granted based on a fact or circumstance that did not exist
- you have not complied with a condition of your visa
- you present a risk to the Australian community
- you present a risk to individuals in Australia
In particular we recommend that you speak to a lawyer if you believe that you have provide incorrect information to the Department or have committed a criminal office in Australia.
If you have committed a crime – can this result in a 116 cancellation of your visa?
Criminal activity may result in a section 116 cancellation of your visa on the basis that you may present a risk to the Australian community.
If you have committed a crime, the Department may consider section 116 visa cancellation and they will issue you with a Notice of Intention to Consider Cancellation (NOICC). You will have a short timeframe to provide information to the Department about your situation.
If you have been convicted of a crime and have been given a prison sentence of 12 months or more, please see section 501 cancellation.
Can I appeal a section 116 visa cancellation?
A section 116 visa cancellation can be appealed. The appeal options should be outlined in your section 116 visa cancellation notification from the Department of Home Affairs. If you receive a 116 cancellation, we recommend that you speak to a lawyer about your appeal options. Our expert migration lawyers can assist you in determining if you have grounds to appeal a decision and assist you with the appeals process.
iMMIGRATION DETENTION
A person can be placed in immigration detention if they are in Australia unlawfully because they do not hold a current visa. If you have been detained and placed in immigration detention, you should seek legal advice from an immigration lawyer as soon as possible.
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WHAT IS IMMIGRATION DETENTION?
Immigration detention refers to detention facilities run by the Australian government which are used to detain people who do not have current visas in Australia.
A person can be placed in immigration detention if they are in Australia unlawfully because they do not hold a current visa.
There are a number of immigration and refugee detention facilities in and outside of Australia.
What are the causes for immigration detention?
A person who does not hold a valid visa is an unlawful non-citizen and must be placed in immigration detention under the Migration Act. A person might be unlawful because:
- they arrived in Australia without a valid visa
- their visa was cancelled
- their visa has expired
You can be placed in immigration detention if you do not hold a current Australian visa or because your visa has been cancelled and there is a purpose of your detention.
The Australian government can only hold a person in detention if they are:
- Organising their removal from Australia
- Receiving, investigating and determining an application for a visa permitting the person to enter and remain in Australia, or
- Determining whether to permit a valid application for a visa
What can I do if I have been detained?
If you have been detained and placed in immigration detention, you should seek legal advice from an immigration lawyer as soon as possible.
You should have access to your mobile phone or a public phone at the detention facility.
What are the reasons for a visa cancellation
There are 4 reasons why your visa may be cancelled:
You were non-compliant with visa conditions
You do not meet the Australian visa character requirements
You provided false information or documents on your visa application
You asked for your visa to be cancelled
You will usually be sent a letter from the Department of Home Affairs notifying you of their intention to cancel your visa before it is cancelled. This letter usually allows you to provide information by a due date explaining why your visa should not be cancelled.
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Can a cancelled visa be reinstated?
The good news is yes, in some circumstances, your cancelled visa can be reinstated. Generally this happens in 2 different ways:
- By successfully appealing the visa cancellationdecision to a tribunal or court
- By successfully applying for revocation if your visa was cancelled under the mandatory cancellation provisions
The reinstatement of a cancelled visa is generally a complex process and our migration lawyers are experts at navigating this process and putting forward the best case possible for our clients. We recommend you obtain migration advice as soon as you receive a letter indicating your visa may be cancelled (this can be referred to as a Notice of Intention to Consider Cancellation – NOICC) or as soon as your visa cancelled. This is because in some cases you may have as little as 2 days to appeal the visa cancellation decision.
How do you appeal a cancellation?
Receiving a visa cancellation notice can be very distressing. You should read your visa cancellation notice carefully because each decision is different. This letter should advise:
- If you have the right to appeal your decision
- The timeframe available to lodge the appeal
- The relevant appeal body your appeal should be directed to
If your letter does not outline this information we suggest that you obtain legal advice.
Generally, a visa cancellation decision is appealed to the Administrative Appeals Tribunal and if this is the case it will be clearly stated in your visa cancellation notice. You can read more here about how to appeal a decision to the AAT
Some visa cancellation decisions are appealed to the courts instead. For example, when the Minister for Immigration personally decides to cancel your visa based on character grounds .
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