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Can a Protection visa be cancelled in Australia?

Australian Migration Lawyer
January 24, 2024
6
minute read

A Protection visa stands as a crucial document, offering sanctuary to those seeking refuge from persecution in their home countries. It is imperative for visa holders to comprehend the potential risks associated with non-compliance, as protection visas are not immune to cancellation.

What are the grounds for cancellation?

Non-compliance with Migration Law requirements

One of the primary grounds for the cancellation of a protection visa is the failure to comply with the stipulated requirements of Australian migration law. This may include failing to providing genuine documents or correct information during the protection visa or passenger card process.

Situational grounds

Certain situational factors may trigger the cancellation of a protection visa. These grounds include changes in circumstances, such as voluntarily returning to and re-establishing oneself in the country one sought protection from, or if the conditions in one’s home country improve to the point where one no longer faces a well-founded fear of persecution.

  • Your visa was granted on a particular fact or circumstance that did not or does not exist; or 
  • You did not comply with a condition of your visa; or
  • You are a risk to the health, safety or good order of the Australian community, or the health or safety of individuals, or are a security risk.

Cancellation on character test grounds

The character test is a critical aspect of visa assessments. If a protection visa holder is found to have a substantial criminal record or poses a risk to the Australian community, their visa may be subject to cancellation on character grounds.

How is a Protection Visa Cancelled?

Notice of intention to consider cancellation (NOICC)

Before a Protection visa is cancelled, the visa holder is issued a Notice of Intention to Consider Cancellation. This formal notice outlines the reasons for potential cancellation and provides an opportunity for the individual to respond and present their case. It is important to consult an Australian Migration Lawyer if you are issued with a NOICC document.

Decision-making process

The decision to cancel a protection visa is made by the Department of Home Affairs. The process involves a thorough review of the individual's circumstances, considering evidence and any submissions made by the visa holder in response to the notice. It is imperative that you provide correct information in your response, as a failure to do so may in itself constitute non-compliance with requirements. The tribunal, in turn, carefully considers your response to this notice in its decision-making process. 

The right to appeal to Australia’s administrative appeal tribunal

If you find yourself facing the prospect of Protection visa cancellation in Australia, understanding the process and the role of the tribunal  is crucial. If the protection visa is cancelled and the visa holder disagrees with the decision, they have the right to appeal to the tribunal. The tribunal serves as an independent body tasked with reviewing decisions made by the Department of Home Affairs, including protection visa cancellations and is a crucial safeguard against unjust decisions in the protection visa cancellation process which has the power to affirm, vary, or set aside the decision made by the Department of Home Affairs. 

How does the tribunal decide if my visa should be cancelled?

The tribunal’s decision-making process for visa cancellations involves two stages. The first stage is for the tribunal to decide whether grounds exist for the cancellation. If the tribunal is satisfied that the grounds for the cancellation are made out, the second stage of the decision process is for the tribunal to consider whether your visa should be cancelled. 

When assessing the grounds for cancellation, the tribunal delves into various aspects, including:

Incorrect Information/Non-Compliance

  • Verification of Correct Information - Scrutinizing the accuracy of the correct information you provided.
  • Content of Genuine Documents - Evaluating the content of any genuine documents submitted.
  • Decision-Making Basis - Investigating whether the decision to grant the visa was based on incorrect information or bogus documents, along with understanding the circumstances and time elapsed since.
  • Current Circumstances - Assessing your present circumstances in comparison to the information provided.
  • Legal Compliance During Visa Holding - Examining any breaches of the law while holding the protection visa.
  • Community Contribution - Considering any contributions you have made to the community.
  • Harm Upon Return - Assessing the harm you might suffer if returned to your home country.
  • Family Hardship - Evaluating the hardship your family might endure if the visa is cancelled.

Situation-Specific Grounds

  • Reasons for Coming to Australia -Understanding why you came to Australia and your motivation for lodging a protection visa application.
  • Visa Conditions Compliance - Assessing whether you have complied with your visa conditions and been truthful and cooperative with the Department.
  • Hardship Assessment - Determining the degree of hardship for both you and your family if the visa were to be cancelled.
  • Circumstances of the Case - Examining the unique circumstances surrounding your case.

Universal Considerations

  • Legal Consequences - Identifying any mandatory legal consequences or consequential visa cancellations.
  • International Obligations - Evaluating whether any international obligations would be breached if you are removed to your home country.
  • Relevant Matters - Delving into any other relevant matters that may impact the decision.

It is important to note that the right to appeal to the tribunal is subject to strict time limits. If you wish to appeal to the tribunal , you must do so within the specified time frame. The time frame varies depending on the type of visa and the circumstances of the case.

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If you are interested in getting more information about a Protection visa, get in touch with Australian Migration Lawyers for a consultation.

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What are the consequences of a cancellation

Inability to apply for another protection visa

Perhaps the most immediate consequence of protection visa cancellation is the subsequent inability to apply for another protection visa within Australia. The closed door to this vital avenue of refuge can significantly impact individuals seeking safety and protection.

Removal from Australia

Cancellation of a protection visa can lead to the unsettling prospect of removal from Australia. This means that individuals may find themselves compelled to return to their home country or, in some cases, seek refuge elsewhere, facing a disruption to their established lives.

Difficulty satisfying character requirements for future visa applications

The cancellation of a protection visa introduces a layer of complexity when it comes to satisfying character requirements for future visa applications. Immigration authorities closely scrutinize the character of visa applicants, and a prior cancellation may pose challenges in meeting these stringent criteria.

In the face of the complex and often daunting landscape of protection visa cancellations in Australia, understanding your options for review is pivotal. When the future of your protection visa hangs in the balance, seeking guidance becomes paramount. Navigating the intricacies of the tribunal and comprehending the multifaceted considerations involved necessitates a nuanced approach. To ensure that your case is diligently examined, it is strongly recommended to enlist the support of seasoned professionals who possess an in-depth understanding of migration law. If the unfortunate circumstance arises where your Protection visa is at risk, Australian Migration Lawyers stand ready to offer invaluable assistance. Our dedicated team, armed with extensive experience, is committed to providing the support needed to navigate the review process successfully. Your journey towards safeguarding your visa status demands knowledgeable allies, and our firm is here to stand with you every step of the way. Don't face the uncertainties alone – seek the support you deserve from Australian Migration Lawyers.

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