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Alba Iulia
Friday, April 30, 2021

Who has the power to cancel a visa?

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Johanna Nonato
Johanna Nonatohttp://bridgeaus.com.au
Johanna Bertumen Nonato is a Registered Migration Agent (MARN 1386856) and the CEO of BridgeAus Migration Consultancy For enquiries, email info@bridgeaus.com.au or call 0427 58 9274.

This seems to be a simple question to answer as it is only the Department of Home Affairs who has the power to cancel a visa. However, there are circumstances that some visa holders are made to believe that their visa can be easily cancelled by individuals or entities around them who claim to have the power to do so.

This article intends to clear up issues on the visa cancellation process, discuss different scenarios where threats for visa cancellation may arise, and provide possible solutions for the affected visa holder.

Visa cancellation process

Visas can be cancelled due to a variety of reasons such as failure to adhere to conditions attached to one’s visa, a change of circumstance in which the visa holder will no longer satisfy the criteria of the visa he/she is on or for character grounds.   

Before a visa is cancelled, the Department of Home Affairs sends a visa cancellation notice to the visa holder (Notice of Intention to Consider Cancellation – NOICC) which gives the visa holder an opportunity to respond and provide a resolution or an explanation on why his/her visa should not be cancelled. The Department of Home Affairs can then decide to cancel or not to cancel one’s visa. If the visa is cancelled, the affected person can opt to appeal the Department’s decision at the Administrative Appeals Tribunal (AAT) or to arrange to leave Australia within the prescribed time.

Here are some scenarios of people or organisations that may threaten to cancel one’s visa:

Family sponsors

This can happen to holders of temporary Partner visas (subclass 300, 309 or 820) or applicants of these Partner visas who are currently on a Bridging Visa whereby the visa holder’s partner or spouse would say that “I will have your visa cancelled if you do this or if you don’t do that.” Spouse or partner sponsors do not have the power to cancel visas, but they can withdraw their sponsorship or let the Department of Home Affairs be aware that their relationship has broken down and that their sponsorship is no longer valid. The Department of Home Affairs can choose to act on this information by sending a NOICC to the visa holder. The visa holder can then provide explanation or resolution to the Department.

 This can also happen to holders of other temporary visas (student visa, TSS 482 visa, etc) who were granted or applied for their visa as dependent of their spouse or partner.

In this scenario, if your relationship with your sponsor has genuinely ended, then you should look for other visa options if you plan to stay in Australia.

Education providers 

Education providers can instil fear in their international students by threatening to cancel their student visa. This is a strategy that education providers might employ to ensure that students attend their classes, pay their tuition fees on time, or refrain from moving to other courses, or moving to other education providers.

Education providers cannot cancel their students’ visa, but they can cancel their students’ enrolment. There should be solid grounds before education providers cancel their students’ enrolment.  When this happens, the Department of Home Affairs will send a NOICC to the affected student and be given a chance to provide an explanation.  One resolution for a cancelled enrolment is for the student to enrol again in a different education provider so as not to breach the 8202 condition (must be enrolled in a full time CRICOS registered course).

Employers

Employers can also claim to have the power to cancel their employees’ visa. Again, it is only the Department of Home Affairs who can cancel a visa but employers can decide to terminate their sponsored employee which can then affect the employee’s ability to adhere to his/her visa conditions.  

For TSS 482 visa holders, it is required that they stay in their nominated occupation and employer who sponsored them on this visa (condition 8607). When a sponsored employee’s employment is terminated, he/she has the option to look for another employer who can sponsor him/her (within the prescribed timeframe) to stay legally and to continue to work in their nominated occupation in Australia.

In summary, if you are in any of these situations, talk to the person who is threatening to cancel your visa and ask him/her to provide reasons for the threat. If you think that this person’s threat will turn into action which can then lead to your visa getting cancelled, it is suggested that you get advice from a Registered Migration Agent or an Immigration Lawyer to discuss the benefits and risks of the options that are available to you (either to apply for an appeal, apply for another visa, or arrange your return to your home country). 

(Johanna Bertumen Nonato is a Registered Migration Agent (MARN1386856) and the CEO of BridgeAus Migration Consultancy. For enquiries, email info@bridgeaus.com.au or call 0427 589 274).


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