If your visa is set to be cancelled during the coronavirus pandemic, not seeking prompt legal advice could jeopardise your chances of lawfully staying in Australia.
- Only the home affairs minister, immigration minister or their delegate can cancel visas
- You can apply for a review of your visa if it was cancelled under Section 501 of the Migration Act 1958 at the Administrative Appeals Tribunal
- A legal expert at Macquarie University found having legal representation significantly improves your visa review outcome
Visa cancellations generally occur based on a breach of visa conditions, failing to meet character requirements or providing false information on a visa application, according to Tim Madigan, a solicitor and migration agent at Queensland’s not-for-profit Refugee and Immigration Legal Service.
Once a visa is cancelled, a person becomes what’s designated as an unlawful non-citizen. They are subject to being put into immigration detention and removed from Australia.
Madigan says the safest thing to do once you receive the Department of Home Affairs’ Notice of Intention to Consider Cancellation of visa is to get legal advice preferably on the same day as the deadlines to respond can sometimes be as short as 2 days.
Legal Aid New South Wales’ solicitor Kate Bones says visa cancellations based on incorrect information can happen right up to the point of a person’s citizenship application.
She says this type of cancellation has been increasing in recent years affecting refugees and asylum seekers in particular as the Department of Home Affairs has shown an increasing inclination to carefully examine all the previously submitted documents.
Bones says there is often a good explanation for inaccurate information where documents are lost or certain identity documents are not issued in a particular country.
It can also be due to people of certain cultures placing less importance on including dates of birth in documents.
Dr Daniel Ghezelbash is the founder and director of the Macquarie University Social Justice Clinic which provides legal advice for asylum seekers and refugees.
Dr Ghezelbash says those sentenced to 12 months or more in prison triggers an automatic visa cancellation clause.
There is the option of reapplying for a visa directly to the Minister of Immigration.
But for that whole time you generally stay at immigration detention, and it takes a couple of years sometimes to go through that process.
Kate Bones says victims of family violence are sometimes threatened with visa cancellations by their abusive partners who do not actually have the legal authority to do so.
She says if somebody needs to leave a violent partner where they are dependent on them as a temporary visa holder, it is the Department of Immigration’s policy not to cancel a person’s visa.
It’s important that a person is able to make that known to the Department of Immigration.
Dr Ghezelbash says in Australia, the avenues for challenging a visa cancellation decision are different depending on the types of cancellation, but in general, people have the rights to appeal through the Administrative Appeals Tribunal (AAT) if their visa has been refused or cancelled under Section 501 of the Migration Act.
That basically involves independent members sitting in the same shoes as the minister looking at all the facts of the cases to see whether the cancellation was appropriate in that case.
According to Dr Ghezelbash, you can also seek judicial review at the Federal Circuit Court on very narrow grounds dependent on whether there was a legal error in the way the decision was made to cancel your visa at the AAT.
In his analysis of AAT Tribunal members who decided 50 or more cases, Dr Ghezelbash found there is a very degree of variation in your review outcome depending on the decision maker appointed to your case.
He found two of the decision makers were never in favour of refugee applicants while one tribunal member approved 86% of cases.
Dr Ghezelbash’s data shows that 52% of all applicants do not have legal representation when they appear before the AAT.
He found that having legal representation can improve an asylum seeker’s success by seven times.
To avoid ending up in the so called “refugee roulette”, a situation many refugees and asylum seekers in the United States and Canada also find themselves in, Dr Ghezelbash says it is vital that applicants engage a lawyer or migration agent for advice.
Madigan says you can apply for a bridging visa to stay lawful in Australia before your visa expires.
Legally legitimate reasons include awaiting your review outcome by the AAT, buying time as you make attempts to leave the country during the coronavirus pandemic on the grounds there are no flights to your home country, or if your government is not letting people enter its borders.
Red Cross head of migration support programs Vicki Mau says her organisation provides food relief as well as some financial support in partnership with the Department of Social Services to people regardless of their visa status.
The one-off payment of about $400 for a family has proven to be a much-needed help for casual workers who lost their jobs and international students in hardship or whose visas are expiring.
It might not sound like an enormous amount but what we do know is that the families were having to choose between food and medicine or work out how to pay their rent but it’s a really critical payment that allows them to do that.
Please note that the comments provided in this article are general advice only and do not apply to all circumstances. If you are concerned about your visa status, it is best that you seek legal advice as soon as possible.
For free legal advice, contact your local state or territory Legal Aid.
Refugee and Immigration Legal Service or RAILS is a free service based in Queensland. You can call RAILS on (07) 3846 9300.
You can also call Refugee Legal on (03) 9413 0100 Wednesdays and Fridays from 10am to 2pm for free advice.
For free translation service, call 13 14 50, specify your language and ask to be connected to your designated organisation.
The Red Cross emergency relief is available for people on temporary visas. Visit the Red Cross website for more information.