Visa Cancelled At Airport if you did not comply with your visa condition
Section 116(1)(b) of the Migration Act 1958 permits event like visa cancelled at airport (click here to learn more) to occur.
Visa cancelled at Airport occurs either you was never entitled to hold the visa, or you are no longer entitled to hold the visa. Section 116 cancellation is either discretionary or mandatory depending on the circumstances and may only be carried out after certain legislated procedural requirements have been met. Temporary visa can also be cancelled under section 116(1)(e)(i) if the Minister believes that you are or may be, or would be, a risk to the health, safety or good order of the Australian community or a segment of the Australian community (click here to learn more).
Section 117(1) of the Act (click here to learn more) provides that visas may be cancelled under section 116(1), (1AA) or (1AB):
- Before you enters Australia; or
- When you leaves Australia; or
- While you are in the migration zone, including in immigration clearance.
The only exception to the section 117 is that a permanent visa cannot be cancelled under section 116(1) if the visa holder is in the migration zone and was immigration cleared on last entering Australia.
A permanent visa can still be cancelled under section 116(1AA), (1AB) or (1AC) in the migration zone and was immigration cleared.
Visa can be cancelled at airport for not complying with visa condition
If you hold, for example, a Student visa and you stopped attending classes or ceased to be enrolled in a course, and you leave Australia temporarily. When you return to Australia, the Australian Border Force at the airport may cancel your Student visa if they are satisfied that you have stopped attending classes or your CoE has been cancelled. You may be detained in an immigration detention center pending your removal or deportation (click here to learn more about getting out of immigration detention center or bridging visas).
In order for the officer to rely on section 116(1)(b) provision to allow for visa to be cancelled at the airport the following must be applied:
- you must be subject to a visa condition and
- the visa condition must have been lawfully imposed and
- you must have failed to have complied with that condition.
Can my Student visa be cancelled for working more than 20 hours per week?
Student visa has the condition 8105 which restrict working hours:
- you must not engage in any work in Australia before your course commences (8105(1A));
- you must not engage in work in Australia for more than 40 hours a fortnight (14 days starting on a Monday) during school term (8105(1)) unless you are studying for a Masters by research or a PhD (8105(2)(b)).
If you are returning to Australia and at the airport the Border Force officer is aware that you have breached your visa condition 8105(1), section 116(1)(b) allowed your visa to be cancelled at the airport, that is, at immigration clearance.
Visa cancelled at airport can result in detention at the immigration detention centre
If your Student visa is cancelled at the airport, you will be notified that you are an unlawful non-citizen and would be held in immigration detention (under s 189(1)) pending removal from Australia.
It depends on, for example, your nationality or whether you are able to satisfy the visa criteria. You should contact an immigration lawyer to discuss your situation immediately. Click here to learn more about Bridging Visa.
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Applying to the AAT to review refusal to grant
Usually under section 338 of the Act, visa cancelled under section 116 is known as a Part 5-reviewable decision (click here to learn more).
However, a Part 5-reviewable decision under section 116 can be reviewed by the AAT if you are in the migration zone, but not in immigration clearance when your Student visa was cancelled at the airport.
Similarly, the AAT cannot review a section 116 cancellation if the decision to cancel your visa when you are either outside Australia or in immigration clearance (at the airport).
If you apply to the AAT to review a decision to cancel or refuse you a visa at the airport, it is likely the Tribunal will invite you to comment on its preliminary view that it had no jurisdiction because you have not been immigration cleared. If you have not been immigration cleared, you are considered not to be physically present in the migration zone when the application for review was made. The AAT does not have jurisdiction because you had not been immigration cleared (s 338(2)(c)).
In addition, the delegate’s decision (known as primary decision -s 476(4) – a privative clause decision is defined in s 474) not to grant a visa or cancel your visa is not a Part 5 reviewable decision (s 338). In short, the delegate’s decision is not a Part 5 reviewable decision (s 476(2)(a)) and the AAT cannot accept your application.
Judicial review of visa cancelled at airport
If you are unable to apply to the AAT to review your Student visa cancellation, you may be able to apply to the Federal Circuit Court or FCC to review the lawfulness of your visa cancellation.
Unlike AAT remits review, there is no requirement that when you apply for judicial review you have to be in Australia at a particular time. This means that even if you are outside Australia at the time of your visa cancellation at the airport, you could still seek judicial review of the decision.
If your visa has been cancelled, you may be prevented for 3 years from applying for another visa (click here to learn more).
Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation if your visa was cancelled at the airport. You may also refer to our FAQs for answers regarding visa application or visa cancellation by clicking here.
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This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.