If so, our team of qualified migration lawyers and agents may be able to help with submissions to the Department in relation to the Notice of Intention to Consider Cancellation (NOICC).
Under the Migration Act 1958, there are several situations in which the Minister may cancel the visa of a current visa holder. In our last post I discussed the importance of continuous compliance with the conditions of your Australian visa. As previously stated, failure to comply with visa conditions can result in the cancellation of your visa, either with notice or automatically, depending on the type of visa held and the reasons for cancellation.
Some such circumstances where your visa may be cancelled include; where the Minister believes that incorrect information or false documents were provided to the Department as part of your visa application, where the conditions of the visa have not been complied with, or where the visa holder no longer meets the character grounds required to hold an Australian visa.
Some of the sections of the Migration Act which are relevant to visa cancellation include:
- s109: Cancellation of visa if information incorrect
- s116: Power to cancel
- s134: Cancellation of business visa
- s137J: Non-complying students may have their visas automatically cancelled
- s501: Refusal or cancellation of visa on character grounds
s109 – Cancellation of visa if information incorrect
Where the Minister is satisfied that the visa holder has provided incorrect information as part of the visa application (and failed to notify the Department of the error), incorrectly completed a passenger card, provided bogus documents to the Department, or failed to notify the Department of a change in circumstance, the Minister may cancel a visa under s109 of the Act.
s116 – Power to cancel
Under s116 of the Act, the Minister has broad discretionary powers to cancel a visa should they be satisfied a certain set of circumstances exist. The circumstances include those such as the decision to grant the visa was made on the basis of facts or circumstances that no longer (or never existed), that the visa holder has not complied with the conditions of their visa, or that the visa holder is a non-genuine student in the case of student visa holders.
s134 – Cancellation of business visa
Where the relevant visa is a business visa, the Minister may cancel the visa for several reasons, including; if they are satisfied that its holder has failed to obtain the required ownership interest in an eligible Australian business, or if the Minister is satisfied that the holder is not participating in the day-to-day management of the business.
s137J – Non-complying students may have their visas automatically cancelled
Under s137J of the Act, where a student visa holder receives from their education provider notice that they breached the conditions of their student visa, the visa will be cancelled automatically after 28 days unless the visa holder complies with the notice, or attends an office of the Department to make submissions related to the breach. It is important to note that this section operates whether or not the visa holder actually receives the notice.
s501 – Refusal or cancellation of visa on character grounds
For visa applicants, the Minister may refuse to grant a visa under s501 where they are not satisfied that the visa applicant passes the character test, or if a visa has already been issued the Minister may cancel the visa where they are satisfied the holder does not pass the character test, and the visa holder fails to satisfy the Minister that they do pass the character test. For the purpose of s501, a person may not pass the character test for a variety of reasons, including; having a substantial criminal record, being convicted of an offence committed whilst in immigration detention, or being convicted (either in Australia or a foreign country) of one or more sexual offences involving a child.
It is important to note that if the Department is considering cancelling your visa, in most cases you will first be issued with a Notice of Intention to Consider Cancellation. If you are the recipient of such a Notice, it is important to contact our team of qualified migration lawyers and agents as soon as possible, as strict time limits do apply.
Our team has assisted many clients with Notice of Intention to Consider Cancellation (NOICC).