Understanding the Points Test for Skilled Migration

If your Australian Visa has been cancelled or you’re facing visa cancellation due to breach of conditions, it’s natural to feel anxious and uncertain about your future in Australia. This guide will walk you through what visa cancellation means, why it’s important, the process involved, your options after cancellation or before one occurs, and how to seek help. Whether you are a student, skilled worker, or on a family visa, understanding your rights and responsibilities is crucial for your migration journey.

Visa Cancellation Due to Breach of Conditions – What Are Your Options?

What is Visa Cancellation and Why is it Important?

Visa cancellation is the process whereby the Australian Department of Home Affairs (DHA) revokes a person’s permission to remain in Australia. This typically happens when a visa holder has not complied with one or more of the visa conditions attached to their class of visa. Conditions can relate to work, study, reporting obligations, character, health, and more.

Why is this important?

• Your right to stay, work, or study in Australia ceases when your visa is cancelled.
• Remaining in Australia without a valid visa is unlawful and could lead to detention or removal.
• Cancellation can impact your ability to apply for visas in the future.
• Understanding your options can help prevent negative outcomes or mitigate their impact.

How Does Visa Cancellation Happen?

The Department of Home Affairs may cancel a visa when it becomes aware of a breach of visa conditions. Examples include:

• Working more hours than permitted on a student visa
• Failing to notify of a change in circumstances
• Committing a criminal offence
• Not meeting the mandatory health or character requirements
• Providing false or misleading information during application or stay
• Not attending required courses or dropping below required attendance (for students)
• Not departing Australia before visa expiry when required

Types of cancellations:

• Mandatory: Some breaches (such as serious criminal offences under Section 501) require automatic cancellation.
• Discretionary: Other breaches allow the DHA officer to assess the circumstances before making a decision.

Who is Affected: Common Professions and Cases

Visa cancellation can potentially affect any visa holder, but certain groups experience it more frequently:

• International students (breaching work limitations or study requirements)
• Skilled migrants (working outside of nominated occupation, providing false information)
• Temporary workers (not completing specified work or overstaying)
• Family visa holders (relationship breakdowns, providing false information)
• Visitors (working when not allowed)
• Refugees and protection visa holders (criminal convictions)
• Business or investor visa holders (not complying with investment or business obligations)

Real Scenario Examples

• A student working more than 48 hours per fortnight during the study period
• A 482 Temporary Skill Shortage visa holder found to be working for an employer not their sponsor
• A family visa applicant failing to notify a relationship breakdown, thus nullifying the genuine relationship requirement
• A backpacker on a Working Holiday visa caught working in a restricted sector
• A bridging visa holder overstaying without valid grounds
• A person with a permanent residency visa committing a serious offence, triggering a character test failure

What Are Your Options After Visa Cancellation?

If you receive notification that your visa is to be cancelled or already has been, you typically have the following options:

1. Responding to a Notice of Intention to Consider Cancellation (NOICC)

Most discretionary cancellation cases start with a written NOICC from DHA, inviting you to make submissions within a specified period (usually between 5-28 days, depending on your location and case). Your options:

• Respond with an explanation: Address the breach and provide evidence or mitigating circumstances.
• Demonstrate compliance: For some conditions, you can provide proof of compliance.
• Personal circumstances: Explain compassionate or compelling reasons for any breach.

2. Appealing or Reviewing a Cancellation Decision

You may be able to seek a review of the decision:

• Administrative Appeals Tribunal (AAT): Most skilled, student, and temporary visa holders can apply for a merits review at the AAT within a strict deadline (usually 7 or 21 days from the date of decision, depending on visa type and situation).
• Federal Circuit and Family Court or Federal Court: In limited circumstances, judicial review is possible if you believe legal error occurred.
• Ministerial Intervention: If all other avenues are exhausted, you may request intervention from the Minister on specific compassionate grounds.

3. Applying for a New Visa

In some situations, you may be permitted to apply for a different visa (see Section 48 bar exceptions if you are onshore). Seeking professional advice is strongly recommended.

4. Departing Australia

If no avenues are available or you decide not to pursue them, you should depart before becoming an unlawful non-citizen, which can affect future applications.

The Procedural Process: Step by Step

1. Notification of Potential Breach: Usually by letter or electronically.
2. Opportunity to Respond (NOICC): Given time to present case.
3. Investigation & Decision: DHA considers your response.
4. Decision Communicated: Notification of visa cancellation or reinstatement.
5. Appeal or Review: Time-limited right to apply for AAT or courts.
6. Bridging Visa Options: Apply for Bridging Visa E (BVE) to lawfully remain during process.
7. Final Resolution: Ministerial Intervention, new visa, or departure.

Key Benefits & Features

• Right to Respond: Most visa holders have the right to be notified