Visa cancellations can make you unlawful in Australia, but what happens when you already had a pending visa application?
Immigration law can be complex, confusing and intimidating for visa applicants and visa holders, particularly the regulations surrounding visa cancellations.
There are many circumstances in which a visa can be cancelled, some of which may feel as if they are outside of the visa holders’ control. Once your visa has been cancelled, stabilizing your legal status in Australia can be difficult.
I breached my visa conditions… now what?
In some situations, visa holders may be aware of an impending visa cancellation before it occurs. This may be the case when visa holders have voluntarily breached the conditions of their visa for circumstances outside of their control, such as leaving your employer whilst on an employer sponsored visa due to mistreatment and unfair working conditions.
In such circumstances, many visa holders attempt to counteract the visa cancellation issue by applying for another visa whilst onshore. The strategy behind this approach is that once you have applied for another substantive visa whilst in Australia, you will be granted a Bridging Visa A (BVA) allowing you to reside in Australia pending a decision on your new visa application.
The general assumption is that in this circumstance your current visa will be cancelled and your BVA will come into effect, allowing you to await your visa decision in Australia.
Will a visa cancellation impact the Bridging Visa I was granted before the cancellation happened?
Many are not aware of the negative ramifications a visa cancellation can have.
A visa cancellation will infect a visa holder’s legal status in Australia, their future plans in Australia and any Bridging Visas that may have been granted when the visa facing cancellation comes into effect.
If your substantive visa is cancelled, any associated Bridging Visa you hold will automatically also be cancelled.
Therefore, the visa holder will effectively become unlawful upon cancellation of their substantive visa.
This leaves applicants with two options to consider:
1. Leave Australia and wait the decision on the yet undecided visa application offshore (if possible – some onshore applications may not permit it); or
2. Apply for a Bridging Visa E (BVE) to keep the visa applicant lawful.
For many, the option of leaving Australia is unrealistic, given their ties to Australia or the fact that the visa can only be granted onshore for certain onshore visas. Therefore, they must look to make an application for a Bridging Visa E to remain lawful in Australia.
What is a Bridging Visa E and what rights do I have on this visa?
The BVE option allows migrants to stabilize their unlawful status and remain in Australia pending a decision on their new visa application.
Unlike other bridging visas, which can allow applicants to work, study, and apply for travel facilities, the BVE will only assist applicants in stabilizing their legal status in Australia. The BVE does not provide study or travel rights to applicants and will only provide them the opportunity to await a visa decision onshore.
The Department of Home Affairs decision maker will also make a decision on whether to allow a BVE holder the right to work. Whether these work rights are granted will depend on the applicant’s individual circumstances.
This is obviously an extremely difficult position for many applicants, who may not have sufficient funds to support themselves in Australia and who may need to travel home to see family whilst awaiting a decision on their visa application.
This can mean lengthy periods of time away from family, an inability to attend major family events/functions offshore and if you are not granted work rights, extremely difficult living circumstances.
The limited options available to migrants in this situation reflect the strict migration laws which apply to visa cancellations, even when the cancellation was created by circumstances outside of the applicant’s control.
The inflexible criteria can create difficult and often painful living circumstances for migrants.
If you are facing a visa cancellation, it is important that you seek urgent advice as to your options.
If your visa has already been cancelled, it is important that you seek to stabilize your status is Australia as soon as possible, and minimize any unlawful periods.
Rostron Carlyle Rojas Lawyers migration team has experience in dealing with complex impending visa cancellations and visa cancellation decisions.
Contact us for a consultation today:
Shanalee Johal, Rostron Carlyle Rojas Lawyers
Lawyer and Registered Migration Agent – MARN 1910236
(07) 3009 8444