Other Immigration Issues & Visa Cancellations
In this section we outline some immigration issue faced by some visa applicants. This is not an exhaustive list nor is it a complete summary, though it will give you a broad idea of what can be done for you in your circumstances if any given issues applies to you. If you do face any of these issues, it is strongly recommended that you seek the assistance of a professional immigration lawyer.
Common Immigration Issues
- A Section 56 Request for Information is a request made under the Migration Act. Firstly, this section empowers the Minister and his delegates to request information. Secondly, where information is requested, the section states that the ‘Minister may invite, orally or in writing, the applicant for a visa to give additional information in a specified way’.
- Most of the time, the request is a simple and straightforward request although in some cases it may mean some further level of enquiries are being conducted on your application. Note, you are required to respond to the request within a specified period of time, typically 28 days (unless otherwise specified).
- Under Schedule 4 of the Migration Regulations 1994, certain “Public Interest Criterion” (PIC) apply to certain people. The two most common types of PIC people run afoul of are PIC 4013 and PIC 4014.
- PIC 4013 and PIC 4014 contain “Exclusion Periods”, meaning that if an applicant does not satisfy the criteria set out in a given PIC, then unless exceptions apply, they cannot be granted a visa within a period of 3 years from a given date, commonly referred to as a “re-entry ban”.
- This means, if you leave Australia as an unlawful non-citizen (i.e. you did not hold any type of visa when you left Australia), or as the holder of a Bridging Visa Class C, D or E granted outside of certain specified timeframes, you may be prevented from obtaining another Australian visa for a period of 3 years.
- PIC 4020 is an integrity measure which is designed to prevent fraud within the visa migration program. It achieves this by imposing severe consequences upon visa applicants who are found not to have complied with these requirements, with a refusal of the visa application in the first instance, and further non-grant periods of either 3 or 10 years for future visa applications.
- PIC 4020 deals with the following two elements in relation to a visa application:
- the provision of a bogus document or false or misleading information; and
- satisfying the Department of your identity.
- In certain circumstances, the requirement to satisfy PIC 4020 may be waived by the Department and consequently, the visa may be granted. Note, failing to satisfy PIC 4020 is grounds for a visa refusal, but not a visa cancellation.
- For the majority of permanent Australian Visas, as well as some temporary visas, the health status of a visa applicant(s) is a relevant factor and certain “Public Interest Criterion” (PIC), including PIC 4005 and PIC 4007, will apply as a criterion to the grant of the visa. This basically means that an applicant (and any dependant’s included on the applicant’s application), must pass a health test to be granted the visa they have applied for. In some cases, a visa applicant who fails this criteria may apply for a waiver.
- A “No Further Stay” condition prevents a visa holder in Australia from applying for further temporary or permanent visas whilst they are in Australia. No Further Stay conditions include, most commonly, Conditions 8503, as well as Condition 8534 and Condition 8535.
- If one of these conditions has been imposed on your visa, you cannot apply for another visa in Australia (except a Protection Visa). A No Further Stay Condition can be waived if since you were granted your visa:
- circumstances have developed that are both compassionate and compelling
- you had no control over these circumstances
- these circumstances have resulted in a major change to your personal circumstances
- A waiver request must be in writing (there is a specified form) and more importantly, must be accompanied with adequate supporting documentation. Strong arguments with little or no supporting documentary evidence will fail – the documentation you supply is critical.
- If you have been refused a visa or had a visa cancelled in Australia, you will not be able to make a further application for most other Australian visas in Australia due to section 48 of the Migration Act 1958.
- Importantly, if section 48 applies, then applicants can only apply for specific visas including:
- Partner Visas
- Protection Visas
- Medical Treatment Visas
- Child Visas
- If you have applied for a Partner Visa in Australia visa and did not hold a visa at the time the application was made (and are hence an unlawful non-citizen), or when you made the application you had been on a Bridging Visa in excess of 28 days, in addition to having to satisfy the usual eligibility criteria for a Partner Visa, you must also satisfy what is known as the “Schedule 3 Criteria”.
- If you are unable to demonstrate that you meet the criteria, you may seek a waiver where there are compelling reasons for not applying those criteria.
Visa Cancellations
If you have received a notice from the Department of Home Affairs, notifying you that your visa has been or is intended to be cancelled, then contact our team of experienced immigration lawyers immediately.
There are 2 main stages to visa cancellations:
- before your visa is cancelled -usually, the department will send you a Notification of Intention to Consider Cancellation (NOICC).
- after your visa is cancelled – when your visa is cancelled, you will have the option to review the decision.
There is generally a strict timeframe for which you can respond to notices or lodge merits review applications. Therefore, it is essential that you seek professional advice as soon as possible.
The three most commonly utilised cancellation provisions are:
- Section 109 – provides a power to cancel visas where a non-citizen fails to comply with certain requirements, including:
- providing incorrect information in a visa application or on a passenger card;
- giving an officer a bogus document;
- failing to notify the department of a change of circumstances;
- failing to correct incorrect answers;
- making any incorrect statement in response to a visa cancellation notice.
- Section 116 – common uses of this section surround cancellation due to:
- providing incorrect information for your current visa;
- a change in circumstances which was relied upon when granting the visa;
- conditions which may not have been complied with during the visa;
- posing a risk to the health, safety or good order of individuals or the Australian community.
- Section 501 – power to refuse and/or cancel a visa if the Minister is satisfied that an individual does not pass the character test. Some examples which constitute failure of the character test include, but are not limited to:
- an individual having a substantial criminal record;
- being convicted of a sexually based offence involving a child (regardless of whether this was discharged);
- being convicted of a crime whilst in immigration detention – this includes during an escape of immigration detention (which in itself can be grounds for not passing a character test) or anytime thereafter escaping detention;
- if an individual has been in or associated with a criminal group, organisation, or person (or if the Minister reasonably suspects the individual has been);
- if an individual has been involved in conduct, whether in Australia or overseas, constituting trafficking in persons, the crime of genocide, a crime against humanity, a war crime, or a crime involving torture or slavery;
- if an individual has been subject to an adverse or qualified security assessment by ASIO;
- there is an Interpol notice in force against the applicant or visa holder.
Our team of friendly, professional and experienced lawyers are here to help you whenever you need. Contact us today for assistance with your matter or as a sounding board for your questions and concerns. We are sure to provide you with accurate, informative and relevant information to help you navigate this tricky process.
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