Receiving a notice of intention to cancel your visa is a serious matter. It means the Department of Home Affairs has identified grounds on which it may cancel your visa and is giving you the opportunity to respond before that decision is made. In some situations, it also means your right to remain in Australia could end very quickly.
Do not wait. Read this now and act immediately.
What Is a Notice of Intention to Cancel?
Before cancelling most visas, the Department is required to give the visa holder a notice of intention to cancel and an opportunity to respond. This notice sets out the grounds being considered, the specific criteria that may be breached, and a time limit for your response.
The response period varies depending on the type of cancellation being considered and where you are. Some notices give you 28 days. Others, particularly in character cases or cases involving criminal matters, can give as little as a few days.
Grounds for Visa Cancellation
Visas can be cancelled on a range of grounds under the Migration Act. Common grounds include:
Failure to comply with visa conditions (such as working more hours than permitted, or undertaking study that is not permitted on your visa). Providing false or misleading information in the original visa application or to the Department. Character concerns arising from a criminal conviction. Changes in circumstances that affect ongoing eligibility. Public health grounds.
Mandatory cancellation under section 501 applies to people who have been sentenced to 12 months or more imprisonment (including in aggregate), have an association with criminal groups, or do not pass the character test on specified grounds. Mandatory cancellation under section 116 and certain other provisions operates differently and involves greater discretion.
What Your Response Should Do
Your response to a notice of intention to cancel should address the specific grounds set out in the notice. Simply asserting that you do not want your visa cancelled is not sufficient.
For condition-related cancellations, explain the circumstances, accept what is accurate, provide context, and demonstrate that the breach was not deliberate or was beyond your control.
For character cases, address the nature of the conduct, the circumstances surrounding it, evidence of rehabilitation or changed circumstances, the impact of cancellation on you and on any family members in Australia, and your ties to Australia.
For false information claims, address what information is contested and why, or acknowledge what occurred and provide context and evidence of good character and compliance.
Character Cancellations Under Section 501
Section 501 character cancellations are among the most serious. They can result in deportation or removal from Australia. If you receive a notice related to section 501, get legal advice urgently. These cases often involve complex legal arguments about what constitutes a failure to pass the character test, and the Department has significant powers in this area.
People serving sentences in Australian prisons who are subject to section 501 mandatory cancellation have very limited time windows to respond. Delays in these cases can be critical.
After the Notice: What Comes Next
If you respond and the Department decides not to proceed with cancellation, your visa continues. If the Department proceeds with cancellation despite your response, you will be notified and may have review rights depending on the type of cancellation.
For discretionary cancellations, review may be available through the AAT. For mandatory section 501 cancellations, review is available through the AAT in some circumstances (not where the Minister personally decides). Judicial review in the Federal Circuit Court is also available where legal errors are identified.
Act Now
If you have received a notice of intention to cancel your visa, contact a registered migration agent or immigration lawyer today. The response deadline in the notice is not flexible. Missing it can result in your visa being cancelled without the Department having considered your response at all.
Frequently Asked Questions
Can my visa be cancelled without any notice?
In emergency situations, the Department can cancel a visa immediately. This is rare and typically applies to serious character or security situations. In most cases, a notice is required first.
What happens to my family members on my visa if my visa is cancelled?
Secondary applicants whose visas were granted on the basis of your primary visa may also be affected. Get advice on how a cancellation would affect your family members.
If my visa is cancelled, am I required to leave immediately?
Depending on the type of cancellation and your review rights, you may or may not be entitled to remain in Australia while pursuing review. In character cancellation cases, detention pending removal is possible. Get advice immediately.