My Visa Got Cancelled at Airport Immigration. What Can I Do Now?
Have you recently returned to Australia and been notified that your visa has been cancelled? While most visa cancellation powers require notice before the visa is cancelled, if your visa was cancelled under section 128 of the Migration Act 1958 (Cth), you may not find out until it is too late. Your visa can only be cancelled in this way if you are outside of Australia.
What is the effect of a visa cancellation?
If your visa has been cancelled and you do not hold any other visas, you will be an ‘unlawful non-citizen’ while in Australia. Being an unlawful non-citizen simply means that you do not have legal permission to be in Australia and there is a risk of you being detained and removed. You may fail to satisfy Special Return Criteria 5002 if you are removed from Australia and want to be granted a new visa within 12 months. The visa cancellation may also lead to a three-year ban under Public Interest Criteria (PIC) 4013 unless compelling or compassionate circumstances can be proven. Public Interest Criteria (PIC) 4014 may also apply if you are removed from Australia as an unlawful non-citizen.
Why you should get a bridging visa?
The effect of a visa cancellation is that you become an unlawful non-citizen immediately when the decision is made. The length of time that you are an unlawful non-citizen is relevant as it may be taken into account for decisions such as whether the minister grants a waiver. It is, therefore, important to minimise the amount of time that you are an unlawful non-citizen. As an unlawful non-citizen, there are a limited number of visas that you can apply for. You can receive a Bridging Visa E (subclass 050) if you need to make any arrangements before leaving Australia. Alternatively, if you wish to remain in Australia, a Bridging Visa E may be granted if you apply for an eligible substantive visa.
What are my options now?
If you have had your visa cancelled recently, you can apply to have the cancellation revoked. The effect of revocation is to essentially restore your visa so that it is still in effect and to allow you to lawfully remain in Australia. You will need to argue that either the grounds for the cancellation do not exist or that there are reasons why the cancellation should be revoked.
You can additionally seek merits review at the Administrative Review Tribunal over the cancellation decision within a time period that is usually 28 days from when the decision was made. If there are any legal errors within the decision, you may also be able to apply for judicial review.
If you are unsuccessful at merits review, you may request ministerial intervention. This power allows the minister to substitute a Tribunal decision with a more favourable one, such as granting a visa. However, the minister is not obligated to consider a request and will usually only do so under particular circumstances.
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How Can Agape Henry Crux Help You?
Found yourself in a situation as abovementioned at the airport, speak with one of our Accredited Specialist Immigration Lawyers (s), our team of immigration lawyers and migration agents at Agape Henry Crux. The team specialises in handling highly complex matters. You can schedule an appointment with one of our lawyers or agents to seek professional advice by calling 02-8310 5230 or emailing us at info@ahclawyers.com.
We speak fluent English, Mandarin, Cantonese and Malay. We can also help you arrange an interpreter if this isn't your language.
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.
