An Australian visa is a permit to travel or enter into Australia, or a permit to remain in Australia. A visa to Australia also is an entitlement for visa- holders to work, study, seek medical treatment, etc.
Currently (2019), there are about 120 visa subclasses available for individuals or businesses to apply accordingly.
In 2018-2019 there are about 9 million visa applications lodged, however, only less than 45% of the total visa application was granted.
The reason for visa refusal is laying in the criteria for the respective visa as each visa subclass has its specific requirements and conditions. If not ALL of the requirements and conditions are meet, your visa application will result in a refusal.
Once your visa was granted, it can also be cancelled under Migration Act 1994 if your status changed or no longer fit the visa conditions. Only the Minister (Minister of Immigration) or a delegate of the Minister can cancel a visa.
In 2018-2019, 943 Australian permanent visas were cancelled.
Visa cancellation are subjected to the following one or all reasons:
- you were non-compliant with your visa conditions;
- you did not meet the character requirement after the grant of your visa;
- you provided false information on your visa application.
S 501 Visa Cancellation–Criminal
Section 501 of the Migration Act has specified the offences or conducts that will trigger the immigration consequences of visa refusal/cancellation. Such offences or behaviours can be categorised as the followings:
Substantial criminal records
a person has a ‘substantial criminal record’ if they have been:
- sentenced to death or imprisonment for life;
- sentenced to imprisonment for 12 months or more;
- sentenced to two or more terms of imprisonment where the total of these terms is two years or more, or;
- acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result, they have been detained in a facility or institution.
Convicted for immigration detention offence
Since 2011, if a person has been convicted of any crime which was committed while the person was in immigration detention, or during or after an escape from immigration detention, before being re-detained.
Also, an escape from immigration detention is itself an offence, and even if the crime is not severe enough to warrant a sentence of 12 months’ imprisonment (or any period of imprisonment), it is enough to have immigration consequences.
Association with persons suspected of engaging in criminal conducts
If the person “has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct”.
Past and present criminal or general conduct
Regarding the person’s past and present criminal conduct and/or general conduct, the Minister of Immigration will consider whether the person is ‘not of good character’:
- whether the person has been involved in activities which show contempt or disregard for the law or human rights (such as war crimes, crimes against humanity, terrorist activities, drug trafficking, ‘political extremism’, extortion, fraud, or ‘a history of serious breaches of immigration law’);
- whether the person has been removed or deported from Australia or another country, and the circumstances that led to the removal or deportation, or;
- whether the person has been dishonourably discharged or discharged prematurely from the armed forces of another country as the result of disciplinary action in the circumstances, or because of conduct, that in Australia would be regarded as serious.
s116 Visa Cancellation-Non Criminal
A visa cancellation under section 116 of Migration Act is dealing with non-criminal conducts of Australian immigrants when the Minister thinks your presence might be a risk to the health, safety or good order of the community.
Here are some examples of non-criminal conducts:
- you have been infected with a certain infectious desease or certain assessments about you have been made by the Foreign Minister, ASIO, Interpol or under particular sanctions legislation;
- you are suspected of committing a migration-related offence;
- you hold a temporary visa and have been convicted of an offence (a non-criminal offence);
- Certain Australian agencies are investigating you, or;
- you hold a bridging visa “E” and have charges pending against you.
Visa Cancellation by the Minister
The Minister or delegate of the Minister also has discretional power to cancel your visa in the following situations:
- You cannot establish your identity,
- You were never, or are no longer, eligible for that visa,
- Fraudulent conduct in obtaining the visa is suspected,
- Visa conditions have not been complied with,
- You gave incorrect information as part of the application process,
- The grant of visa was otherwise unlawful,
- You hold a student, visitor, transit or temporary business or work visa, and the Minister thinks you are not genuine in your declared intentions or are acting in the wrong manner,
- Your sponsor was paid in some way to sponsor you, or they are not complying with their obligations, or
- You request that your visa be cancelled.
Appeal to AAT-FCC-FCA-HCA
Generally, if you believe the reasons for your visa refusal/ cancellation are unfair, you might seek the legal justification from AAT, FCC, FCA, HCA, or seek the internal review or Ministerial Intenvention if this path is available.
Visa Appeal to
When you are dealing with Australian visa refusal/ cancellation, You will be given a specific time frame to seek legal justification, so timing is vital in terms of protecting your rights to appeal.
Win Your Visa Back
To understand the Australian visa review systems and best prepare yourself to challenge your visa refusal/cancellation, you should be fully informed about the avenues available and the Pros and Cons associated with each avenue.
If you are finding it difficult and time-consuming to understand the law and represent yourself in AAT, FCC, HCA, or seeking intervention by the Minister, this e-Guide to Win Back Visa/Citizenship in AAT-FCC-HCA will provide you with the essential guidance.