Visa Cancellations – Is it possible to cancel a permanent visa?
The answer to this question is simply yes. All kind of visas including Permanent visas can be cancelled by department of Immigration and Border protection (DIBP). Even Australian citizenship can be cancelled under certain circumstances which we explained in details in one of our last posts ( Can You Ever Lose Your Australian Citizenship Status? ) . All immigrants to Australia should understand the circumstances in which a visa can be cancelled and the consequences of such a cancellation. Visa Cancellation can be avoided or revoked after it got cancelled. 
DIBP has the power to cancel any kind of visas and in this article different kind of visa cancellation will be discussed. The Migration Act provided a number of provisions which give the Minister of Immigration (or DIBP delegate of Minister) power to cancel a visa in various circumstances. The cancellation powers are categorised as bellow (There are some other categories but these are the most important ones):
- Section 109 – Incorrect Information: cancellation where visa granted on basis of incorrect information or false document (this applies to all visas, Permanent or Temporary Visas).
- Section 116 – General Grounds: cancellation for failure to comply with conditions and other grounds.
- Section 128 – Visa Holder Outside Australia: Same as S109 or s116 cancellations. Visa holder is offshore and no notice of intent to cancel is sent to the visa holder prior to cancellation.
- Section 134 – Business Visas: To cancel permanent business migration visas where visa holders fail to abide by the conditions of their visa.
- Section 137Q – Regional Sponsored Employment Visas: To cancel Regional sponsored employment visas where the holder fails to abide by the conditions of their visa.
- Section 140 – Consequential Cancellation: To cancel the visas of dependent family members where the main visa holder’s visa is cancelled
- Section 501 – Character Grounds: cancellation on character or certain other public interest grounds
Most Permanent visas would be cancelled under Sections 109, 128 and 501 of the Migration Act. Most of permanent visa holder will receive a notice of intention to consider visa cancellation notification and DIBP will provide them a short amount of time to explain why the visa should not get cancelled. However under section 501, a visa can be cancelled without sending that notice. Also worse than that is under section 128, permanent visa can be cancelled without notification when the permanent visa holder is not in Australia and normally if the cancellation happens when the visa holder is offshore, there might be no review right available (Recently, we were contacted by a client whose permanent protection visa got cancelled when he was offshore).
Section 109 – Incorrect Information
Cancellations made under s109 can occur after it is found that an incorrect answer, fraudulent information or a bogus document was given in relation to a visa application.
The power to cancel in s.109 arises where the Department of Immigration considers that the holder of a visa who has been immigration cleared:
- Either did not answer or answered incorrectly the questions on the application form or passenger card or otherwise in connection with a decision under sections of the Migration Act
- Gave a false document to a decision maker
- Failed to advise the Department if circumstances change so that an answer given in an application form, or information given, is no longer correct
- Failed to notify an officer that an answer given or information given was incorrect when it was given
The Migration Act states that it does not matter whether or not the person knew that the information supplied was incorrect.
A false document is one that the Department of Immigration reasonably suspects:
- Was obtained because of a false or misleading statement, whether or not made knowingly
- Is counterfeit or has been altered by a person without authority to do so
- Claims to have been, but was not, issued for the person
The Department of Immigration has discretion to cancel the visa after considering any response by the holder and circumstances prescribed in the Migration Regulations. If a person’s visa is cancelled under section 109 or 116, visas held by members of their family unit are also cancelled. This visa cancellation is not mandatory.
Is it possible to avoid this visa cancellation? Yes. Please contact us if you received a notice of intention to consider visa cancellation by DIBP.
Section 116 – General Grounds
The grounds for cancellation of a visa under section 116 are:
- The holder has not complied with a condition of the visa
- Circumstances which permitted the grant of the visa no longer exist
- The presence of the holder in Australia is, or would be, a risk to the health safety or good order of the Australian community
The Department of Immigration may cancel a visa if satisfied that these grounds exist. The procedure is that notice must first be given of the intention to cancel the visa and the holder given an opportunity to respond. Section 116(3) provides that a visa must be cancelled in certain circumstances. These include the failure of a student to comply with condition 8202, which deals with the satisfaction of course requirements.
A permanent visa cannot be cancelled under s.116 if the holder has lawfully entered Australia. If the holder of a visa has not entered Australia the visa can be cancelled without notice on the grounds in s.116. Cancellation under this provision may be revoked unless the ground for cancellation is one for which the Department of Immigration must cancel the visa.
Is it possible to avoid this visa cancellation? Yes. Please contact us if you received a notice of intention to consider visa cancellation by DIBP.
Section 128 – Visa Holder Outside Australia
Section 128 visa cancellations take place when there is a ground for cancelling a visa under sections 109 or 116 and the visa holder is offshore. This power is quite different to sections 109 or 116 as the Minister does not have to notify the visa holder in advance that cancellation of the visa is being considered. Instead, the visa holder must be sent notification that the visa has been cancelled and must be invited to seek revocation of the cancellation.
As far as cancellation cases are concerned, merits review will normally be available if the former visa holder was in Australia (but not in immigration detention) when the cancellation occurred. Merits review is generally not available if the former visa holder is in immigration detention or outside of Australia when the cancellation occurred.
Is it possible to avoid this visa cancellation? No. Is it possible to revoke the cancellation? Yes . Please contact us for more information.
Section 134 – Business Visas
Section 134 sets out the grounds on which the Minister may cancel a business skills visa. Section 134 visa cancellation is quite unique among all the other cancellation powers.
The power applies to any visa class with the words ‘Business Skills’ in its title, which at present includes visa subclasses 132, 160, 161, 162, 163, 164, 165, 188, 840, 841, 842, 843, 844, 845 and 888. Cancellation of business visas and the cancellation of visas on character grounds (s.501) are reviewable by the Administrative Appeals Tribunal (AAT).
Please contact us for more information about this visa cancellation power.
Section 137Q – Regional Sponsored Employment Visas
Section 137Q cancellations concern visa holders sponsored under Regional sponsored employment. Cancellation can turn on whether the visa holder failed to commence the employment referred to in the relevant employer nomination and whether the visa holder has made a genuine effort to commence that employment within the prescribed time frame. The visa can also be cancelled if the visa holder commenced the employment but left the job within 2 years.
Please contact us for more information about this visa cancellation power.
Section 140 – Consequential Cancellation
Section 140 sets out the effect of visa cancellation of the primary visa holder’s visa on their family unit members’ visas when the main person’s visa is cancelled under Sections 109, 116 or 128.
Please contact us for more information about this visa cancellation power.
Section 501 – Character Grounds
Section 501 of the Migration Act contains grounds for the cancellation of a visa where the Department of Immigration is satisfied that the visa holder:
- Would be likely to engage in criminal conduct in Australia
- Would vilify a section of the Australian community
- Represents a danger to the Australian community
- Would incite discord in Australia
- Is ‘not of good character’
Section 501 cancellations are complex matters. The affected visa holder often misunderstands this process to the extent that many do not immediately seek professional advice. The powers given to the Minister under this section are extensive. The Act even allows the Minister to cancel a visa without applying any of the usual procedures for ensuring natural justice – such as giving prior notice of intention to cancel and inviting the visa holder to respond.
Is it possible to avoid this visa cancellation? Yes. Is it possible to revoke the cancellation? Yes . Please contact us for more information.
