Visa Cancellation – Making the Right Choices

The almost instantaneous enforcement of visa cancellations may often appear heartless and totally lacking in reasonable evaluation but the fact remains, abrupt cancellations can and do happen. It’s therefore incumbent upon affected visa holders to act quickly, seeking immediate and considered professional advice and arranging an appropriate response within the time period allowed.

Section 116 (1) of the Migration Act provides the Minister for Immigration and Border Protection (or The Minister’s delegate) with the power to cancel a visa in a number of circumstances, including those where the visa holder is seen to have breached a visa condition or where it the visa has been discovered to have been fraudulently issued or obtained.

On face value, this criteria and its application appear both sound and responsible but transparency becomes far more clouded under Section 116 (1) (e) of the Act where, without need for absolute proof, explanation or clarification, the Minister’s discretionary powers can be used to rapidly decide the fate of those targeted on temporary or bridging visas.

The Section gives the Minister (or delegate) the power to cancel a visa if they are “satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community”.

The decision rests on the balance of probabilities and formal criminal conviction is totally irrelevant. It can only be described as an “executive decision”.

A rushed decision

Cheryala vs Minister for Immigration and Border Protection (2018) FCAFC 43, is a prime example of how decisions made in haste can go wrong.

Cheryala was a citizen of Lebanon, living in Australia on a Bridging Visa E. In June 2017, he was arrested and charged with a number of offences, resulting in cancellation of his visa under Section 116 (1) (g).The prescribed grounds for such cancellation, listed in regulation 2.43, require only that the visa holder be charged with an offence, not convicted.

Upon cancellation of his visa, Cheryala was taken into custody and although he was duly informed that he could apply for a review of the Minister’s decision, he instead chose to make application for a new bridging visa.

Ultimately, the criminal charges against him were withdrawn and all relating prosecution was dismissed, the original basis for visa cancellation ceased to exist, yet the decision remained.

The application for a new visa was declined. Cheryala was informed that it was invalid under Item 1305 (3) (g) of Schedule 1, which requires that applicants for Bridging E visas must not have previously had a visa cancelled on one of the grounds specified in regulation 2.43(1) (p) and of course, he had allowed this to happen.

The matter was challenged in the Full Court but failed, the Court rightly ruling that Cheryala chose not to seek review of the initial cancellation, allowing it to become final on the grounds stated and therefore, that any subsequent applications remained subject to standard provisions.

Had the visa holder elected to review the initial decision, rather than to ignore its implications, the outcome may have been different, but he didn’t.

There’s no time to waste

When a visa holder, living in the community, becomes a person of interest for visa cancellation he or she is generally issued with a Notice of Intention to Cancel (NOIC) letter, providing just five working days to defend the cancellation. Occasionally, for those already living in detention centres, this timeframe can reduce to a matter of hours. Time is most certainly of the essence!

Professional advice is crucial

Immigration law is a complex area and one which changes almost day by day. Outcomes can never be guaranteed but, being mindful of Cheryala vs Minister for Immigration and Border Protection, the correct strategy is critical to the best chance for a positive outcome.

Upon receipt of a NOIC letter, the targeted visa holder would be wise to immediately communicate with his or her chosen immigration professionals. There’s just one instant opportunity and simply no time to waste.

For more information on this or on any relating issues, contact the migration experts – Sellanes Clark and Associates – specialising in all immigration matters.

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