AAT - Tang Law Perth

49,618 visas were cancelled in 2013-2014 (“Australia’s Migration Trends 2013-2014”, Department of Immigration and Border Protection, at page 71-72)

Did You Know?

In 2013-2014, Australia granted 190,000 visas in total. At the same time, almost 50,000 visas were cancelled. That’s more than 1 in 4 visas granted was cancelled! For a non-citizen, will you unknowingly and unluckily become 1 of the 4?

Under what circumstances can Australia take away (and cancel) your visa?

Power to Cancel

The Migration Act (Cth) 1958 stipulates circumstances where the Minister can cancel visa:

Section 134: A Business Visa can be cancelled where the visa holder has not obtained a substantial ownership interest in an eligible business in Australia or has not utilizing his or her skills in actively participating at a senior level in the day-to-day management of that business.
Section 109: A visa obtained based on incorrect information or false document can be cancelled. Whether or not you were aware or had knowledge that the information supplied was incorrect is irrelevant
Section 116: Cancellation for failure to comply with conditions and other grounds. For instance, cancellation of Employer Sponsored visas and student visas.
Section 501: A visa can be cancelled where the visa holder fails the good character test.

Warning: In many circumstances, your family member as secondary visa holder will also lose his or her visa if your visa is cancelled.

Tip 1: Know Your Obligations

It is very likely that there are strict conditions attached to your visa. It is your obligation to comply with these conditions. Do you know what your obligations are?

These conditions are generally stipulated in the notice of grant when you first obtained the visa. Study them carefully and make sure you do not (inadvertently or unknowingly) breach any of the conditions. “I didn’t know” is not a valid excuse!

If you are unsure of your obligations, do seek professional advice immediately.

Tip 2: Give Correct Information

Do not attempt to mislead the Department of Immigration. Failure to give full disclose of relevant information can be construed as misleading.

There is only one way to avoid giving incorrect or false information – ensure that you make only statement of facts that are within your knowledge.

If you are uncertain about how to respond or answer a particular question from the Immigration, seek help from a registered migration agent or a professional immigration lawyer. Do not simply guess! Giving a wrong answer can be very fatal.

Tip 3: Don’t Wait

If you receive any notice or enquiry from the Department of Immigration or authority relating to your visa, you need to act immediately. There is strict time limit for you to exercise or protect you rights. You may be entitled to appeal to Administrative Appeal Tribunal (AAT), for merits review or the Federal Court for judicial review, but you must do it within the time limit. Do not wait, you should get professional advice immediately!

Tip 4: Participation and Ownership (Specifically for Business Visa Holders)

Many business visa cancellations were found on the grounds that the visa holder did not have substantial ownership in an eligible business and failed to actively particulate at a senior level in the day-to-day management of the business.

Firstly, pay attention when establishing your structure. Structure of your legal vehicle will determine whether you have the correct “ownership” to meet the Migration Act requirement.

Secondly, make sure the venture you intend to carry on is a “business” within the legal definition and also an “eligible business” within the meaning of the Migration Act.

Thirdly, the Migration Act requires you to actively participate at a senior level in the day-to-day management of your business. Practically, it can be a problem if you are not physically in Australia most of the time. You will need to be able to illustrate how you have actively participated in the day-to-day management. This is one of the most common grounds for cancelling a business visa.

ABOUT THE WRITER

Kelvin Tang has over 14 years’ experience practising law in Western Australia. He is the founder and Principal Partner of Tang Law based in Perth, Western Australia. Kelvin is a Registered Migration Agent (MARN: 1386452) and has extensive experience in providing migration advice to clients, advising on “Eligible Businesses” within the definition of the Migration Regulations, assisting migrants (investor of the business) with satisfying migration requirements, making visa applications and appealing cancelled or refused visas in the Federal Court of Australia, Administrative Appeals Tribunal and Migration Review Tribunal. Kelvin also has extensive experience in civil litigation, commercial and corporate law matters.

If your visa is being cancelled or your application for visa is unsuccessful, it is usually possible to appeal or apply for review of the decision. There are three (3) types of appeals and/or reviews:

Merits review through the Administrative Appeals Tribunal
Judicial review through the Federal Court
Intervention by the Minister for Immigration.

Strict Time Limit

However, you must be aware of the strict time limit imposed on your right to appeal or apply for review.

If your visa is being cancelled or your application is being refused, you need to act immediately to avoid losing your right to appeal as a result of time limitation expiring.

Do not forget, you need to allow adequate time for your lawyers to assess your appeal. In considering an appeal, there are several issues that must be considered:

Do you have a right to appeal?
If so, what type of reviews are you entitled to – merits review or judicial review?
What are your grounds of appeal?
Does your evidence support the grounds that may be available to you?

Merits Review – Administrative Appeals Tribunal (AAT)

The Refugee Review Tribunal, the Migration Review Tribunal and the AAT deal with merits review. Since 1 July 2015, the former two tribunals have merged into AAT, which is now the only merits review body.

In a merit review, the tribunal puts itself in the shoes of the original decision maker and review the merits of the decision by reconsidering the facts, law and policy aspects relevant to the original decision, and come to a decision as to whether the original decision is correct and therefore be affirmed, or whether a correct and preferable decision should be made. The Tribunal will consider the evidence from a fresh perspective.

Merits review is more or less your “second attempt” at the application.

Judicial Review – Federal Court of Australia

Decisions of the immigration department in relation to refusal or cancellation of visa is a type of administrative decision. In coming to an administrative decision, the decision-maker must follow the correct legal process. If the decision-maker failed to follow correct legal process in making a decision, it can be challenged via judicial review by appealing to the Federal Court of Australia.

If the Court finds that a decision is unlawful, the Court has the power to:

Order that the decision be quashed and or set aside.
Order that the decision-maker follow the correct legal process and re-make the decision.
Declare a legal position, for instance, that the decision is legally incorrect.
Order injunctive reliefs.

There are many grounds of judicial review, some examples include:

An error of law, where the decision maker wrongly applied the law.
The decision-maker wrongly took into account of irrelevant considerations or failed to take into account relevant considerations.
The decision-maker acted beyond its responsibilities or acted with improper purpose.
The decision-maker, when coming to a decision, acted very unreasonably that no reasonable decision-maker could reach that decision.

Ministerial Intervention

In many circumstances (but not always), it is possible to seek ministerial intervention after receiving a negative decision from the Tribunal. Under the Migration Act 1958, the Minister for Immigration has the power to interview and grant a visa on public interest ground.

There are certain circumstances where the minister cannot intervene even after a decision by a tribunal. These include:

The decision by department of immigration not to grant a visa is not a decision that can be reviewed by the relevant review tribunal;
the review tribunal has sent your case back to the department for further consideration and one of the decision-makers has made a subsequent decision on the visa;
your review tribunal decision was made before 1 September 1994
a finding by the tribunal that the application made to the tribunal was invalid as it was not made within the required timeframe;
a decision of the AAT that is not in respect of an MRT reviewable decision or a protection visa decision.

In determining whether to exercise the power and intervene, the minister looks at the submissions from a “humanitarian” perspective. This generally requires consideration of larger-picture issues such as the public interests at large, the interests of the nation, and other interests such as economic, trade, or cultural interests.

Past Cases & Experience

TANG LEGAL has helped applicants with appeals and reviews in many contexts of visa cancellation and refusal:

Revocation relating to Student Visa
Criminal Deportation (see Criminal Deportation)
Character ground – Failed to demonstrate good character
Genuineness of marital or spousal relationship
Termination of marital or spousal relationship and domestic violence
Genuineness of legal child
Breach of visa conditions
Genuineness of company sponsorship and nomination
Termination of employment
Refusal of protection visa
Discovery of incorrect, false or misleading information given to Immigration

Perth Office

HOW TO AVOID VISA CANCELLATION IN AUSTRALIA