Visa cancellation – non-criminal cases – a citizenship application will trigger a review of the applicant’s visa file

Not just the law but the practice of Immigration on visa cancellation is becoming more aggressive.

The result is that many otherwise productive people living in Australia are facing visa cancellation. Getting Australian citizenship obviously protects a person from visa cancellation (except for historical criminal acts occurring before citizenship grant with conviction post grant). However that act of applying for citizenship will lead to Immigration running the ruler over the whole of the applicant’s visa history. If there are skeletons in the visa cupboard may be best to leave well alone and not apply for citizenship.

Here are some examples, applicant got someone else to sit her IELTS test for a skilled visa application, not picked up at the grant stage many years ago, but when the citizenship application was lodged, facial recognition software presumably picked up the issue. The result visa cancellation. Had that person never applied for citizenship, the problem may never have been detected. This is not to condone bad behaviour but one past indiscretion even if a bad one need not marr someone forever.

Similarly in an RSMS 187 case the applicant did not complete the 2 years employment in the regional area and instead moved to a capital city, without a citizenship application this may never have been picked up.

In other cases, for persons having unfinished criminal behaviour issues in the country of origin, (especially undeclared) this will re-emerge at the citizenship application stage even if there are no convictions recorded.

Especially in cases where there is a skeleton in the visa cupboard, the secondary visa holders need to transition to holding a visa in their own right, like an Resident Return Visa. Indeed as soon as a secondary visa holder is eligible to obtain a visa in his or her own right, he or she should apply and get such a visa. Otherwise the secondary visa holder will have his or her visa cancelled automatically under s140 of the Migration Act. Often very little is done during the period when the persons holds the visa to improve that secondary visa’s holder’s position. Often, low English, low skilled and even patchy work history, none of which makes a secondary visa holder an attractive candidate to exercise the discretion not to cancel the visa.

Generally persons with an unblemished visa backgrounds should apply for citizenship.

Visa cancellation in the non-criminal area, is discretionary. There is no mandatory cancellation (apart from the consequential cancellation for secondary visa holders under s140). Hence visa cancellation can be resisted, especially at the AAT stage.

The aggressive behaviour of Immigration, at times, can mean that gaps were ignored by the investigating officers. Hence first step in all visa cancellation cases is to do a root and branch analysis. Quite often errors are picked. For example in an employment visa case the investigating offices focused on the applicant not working at a particular location when in fact the visa holder had been working at multiple locations. In other cases the officers went over the top alleging false statements and fraud in the visa application when instead visa cancellation under s137Q (not working in the regional area for 2years) would have been easier to prove. Often discretionary issues, like the existence of an Australian born, Australian citizen child, are not fully taken into account by officers in visa cancellation cases.

Visa cancellation threats can be resisted with careful planning, in some cases though, clients should bring on cancellation possibilities if there are skeletons in the visa cupboard. Citizenship applications may indeed lead to the whole past visa application being re-assessed. In some cases, therefore hold off on citizenship applications until the applicant’s other circumstances are overwhelmingly positive.  

Lorenzo Boccabella, Barrister-at-law, Specialist in migration law