An expert on visa cancellation in Australia explains that new legislative amendments went into effect on November 1, 2023. Today, the Commonwealth Government has officially declared an amendment to paragraph 2.43(1)(s) of the Migration Regulations 1994. This amendment involves the insertion of section 186A(1) from the Bio Security Act 2015 into paragraph 2.43(1)(s). To read the amendment, click here.

The newly introduced cancellation ground is an upgrade to the preexisting provision outlined in paragraph 2.43(1)(s) of the Migration Regulations 1994. These regulations allow for the immediate cancellation of visas at the airport, even before an individual has completed customs clearance. The objective of these cancellation powers is to enhance the robustness of Australia’s stringent bio-security regulations.

This legislation impacts the visa subclasses listed below:

1. Subclass 400 (Temporary Work (Short Stay Specialist)) visa
2. Subclass 403 (Temporary Work (International Relations)) visa
3. Subclass 407 (Training) visa
4. Subclass 408 (Temporary Activity) visa
5. Subclass 417 (Working Holiday) visa
6. Subclass 457 (Temporary Work (Skilled)) visa

   

7. Subclass 462 (Work and Holiday) visa
8. Subclass 476 (Skilled—Recognised Graduate) visa
9. Subclass 482 (Temporary Skill Shortage) visa
10. Subclass 485 (Temporary Graduate) visa
11. Subclass 500 (Student) visa
12. Subclass 590 (Student Guardian) visa
13. Subclass 600 (Visitor) visa
14. Subclass 601 (Electronic Travel Authority) visa
15. Subclass 651 (eVisitor) visa
16. Subclass 676 (Tourist) visa
17. Subclass 771 (Transit) visa
18. Subclass 988 (Maritime Crew) visa

This means that if any of these temporary visa holders are found to be in breach of certain provisions of the Bio Security Act 2015 (Cth), their visas will be immediately cancelled at the airport, and they will be deported. The following is a summary of these clauses:

Section 126(2): Asking questions about goods

A person who is required to answer questions, or provide information in writing, under subsection (1) must comply with the requirement.

Civil penalty: 300 penalty units

Section 128(2): Movement of goods

A person who is given a direction under paragraph (1)(a) must comply with the direction.

Civil penalty: 300 penalty units

Section 186A(1): Contravening conditions applying to conditionally non‑prohibited goods brought or imported into Australian territory—concealment of goods

(1)  A person is liable to a civil penalty if:

1. the person brings or imports goods into Australian territory; and
2. the goods are conditionally non‑prohibited goods; and
3. a condition in relation to the goods specified in a determination in force under subsection 174(1) has not been complied with; and
4. the goods are concealed for the purpose of preventing the goods from being found, or preventing the true nature of the goods from being determined, by a biosecurity official.

Civil penalty: 1,200 penalty units.

(2)  Conceal goods includes any of the following:

1. concealing or disguising the goods on a person, within any clothing worn by the person, within any other object located on the person or within any other object not located on the person (including by sewing, gluing, fastening, binding, wrapping, covering, enveloping or packaging the goods);
2. incorrectly marking or labelling the goods or any packaging or container in which the goods are located;
3. altering the goods (including by changing or suppressing the appearance, texture, smell or sound of the goods).

Exception

(3)  Subsection (1) does not apply if the person:

1. did not do the act, or omit to do the act, that constituted the failure to comply with the condition referred to in paragraph (1)(c); and
2. did not aid, abet, counsel or procure that act or omission; and
3. was not in any way knowingly concerned in, or party to, that act or omission (whether directly or indirectly and whether by any act or omission of the person).

Note: A defendant bears an evidential burden in relation to the matters in this subsection (see section 96 of the Regulatory Powers Act).

Section 532(1): Civil penalty provision for false or misleading information

(1)  A person is liable to a civil penalty if:

1. the person gives information in compliance or purported compliance with this Act; and
2. the person does so knowing that the information:
3. is false or misleading; or
4. omits any matter or thing without which the information is misleading.

Civil penalty: 600 penalty units.

Section 533(1): Civil penalty provision for false or misleading documents

(1)  A person is liable to a civil penalty if:

1. the person produces a document to another person; and
2. the person does so knowing that the document is false or misleading; and
3. the document is produced in compliance or purported compliance with this Act.

Civil penalty: 600 penalty units.

Before a visa can be cancelled, certain mechanisms must be activated to ensure that the visa holder receives the natural justice protections mandated by the Migration Act 1958. One of these is providing the visa holder with an opportunity to comment on the proposed cancellation of the visa. If you find yourself in such a predicament, consider calling us immediately.

There are available review rights when visas are cancelled. This merit review option is available to the former visa holder. At Salomonn Migration and Advocacy, we offer sound advice and representation on visa cancellation matters. Sydney based experienced registered migration agent Raymond Salomonn have the knowledge and expertise to handle with visa cancellation matters both at the Department of Home Affairs and before the Administrative Appeals Tribunal.