Visa cancellations on the rise

Last week, the Minister for Immigration and Border Protection, Peter Dutton, released a statement confirming over 1000 visas were cancelled on character grounds in 2016.

Recent cancellation statistics provided by the Department of Immigration and Border Protection (DIBP) shows that these were not the only type of visa cancellations on the up and up.

Visas can be cancelled for a number of reasons, and there are a number of powers in the Act, which provide for the DIBP to cancel visas. The specific power (or section in the Act) for which a visa is cancelled is important as it determines the consequences of the cancellation.

For instance, those who have had their visas cancelled on character grounds, are cancelled pursuant to section 501, 501A or 501B of the Migration Act 1958 (Cth). These cancellations are very serious as unless this cancellation is revoked, or the Minister personally grants a permanent visa after the cancellation, the people affected will be subject to the Special Return Criterion 5001. This criterion is applied to almost, if not, all visa subclasses. If SRC 5001 applies, that person is subject to permanent exclusion from Australia.

While character cancellations are the most serious cancellations imaginable, others have penalties as well. Without knowing the reasons behind the 19,688 student visa cancellations in the 2015-16 financial year, it is hard to assess what implications their cancellations may have. What can be said though is that many student visa conditions, and subsequent cancellation because of a breach of these conditions, may place that person at risk of being subject to an exclusion period, namely public interest criterion (PIC) 4013.

PIC 4013 provides for a 3-year exclusion period for any application made after the cancellation of a visa on specific grounds unless there is compelling circumstances affecting Australia’s interests, or compelling or compassionate circumstances that affect the interests of an Australian citizen, an Australian permanent resident or an eligible New Zealand citizen. PIC 4013 applies to many visa subclasses, especially temporary visas.

What should be alarming for some is the 80 per cent increase of student visa cancellations from the financial year 2014-15. The DIBP states this “coincides with a new business model deployed by the Department to reduce the timeframe for cancellation decisions.”

Student visa holders, and visa holder in general for that matter, should be on notice.