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3 What are the consequences of visa refusal or cancellation?

When a person’s application for a visa is refused or his or her visa is cancelled under section 501 of the Migration Act, unless he or she already holds a protection visa, the person becomes an unlawful non-citizen.[41]

Under the Migration Act, as an unlawful non-citizen the person must be placed in immigration detention and detained until he or she is either granted a visa, deported, or removed from Australia.[42]

As at 23 May 2013, there were 49 people in immigration detention because their visas had been cancelled under section 501, and seven people in detention who had their visas refused under section 501.[43] In 2011-12, 78 people who had been detained due to their visas being cancelled under section 501 were removed from Australia.[44]

In addition to being detained and possibly removed from Australia, a person who has a visa refused or cancelled under section 501:

  • will be prohibited from applying for another visa (other than a protection visa or a ‘removal pending’ bridging visa) while in Australia[45]
  • if removed from Australia following cancellation of their visa, will not be eligible to be granted most types of visas (and therefore to return to Australia) if their visa was cancelled because of a substantial criminal record, past or present criminal conduct, or a combination of past or present criminal and general conduct.[46]

[41]Migration Act 1958 (Cth), ss 13, 14, 501F. Under section 501F of the Migration Act, once a person’s application for a visa is refused or his or her visa is cancelled under section 501, all visas issued to that person, except for a protection visa or a type of visa specified in the Migration Regulations, are cancelled, and all applications for visas other than a protection visa are deemed to be refused. There are currently no other visas specified in the Migration Regulations for the purposes of section 501F.

[42]Migration Act 1958 (Cth), ss 189(1), 196(1).

[43]Department of Immigration and Citizenship, Response to ‘Request for Information from the Australian Human Rights Commission (AHRC) - Section 501 Visa Cancellation and Refusal DIAC Ref 1300157’, 29 May 2013.

[44] Department of Immigration and Citizenship, above.

[45]Migration Act 1958 (Cth), s 501E. Under section 501E(2), a person may still apply for a protection visa or a visa specified in the Migration Regulations (at the time of writing, the only visa specified in the Regulations was the subclass 070 Bridging (Removal Pending) visa: see the Migration Regulations, reg 2.12AA). However, see section 48A of the Migration Act, which may prevent a person from making an application for a protection visa while in Australia if they have already had a protection visa application refused, or a protection visa cancelled.

[46] See Migration Regulations 1994 (Cth), Schedule 5, clause 5001(c). The effect of that clause is that a person who has been removed from Australia following cancellation of their visa because of a substantial criminal record, past or present criminal conduct, or a combination of past or present criminal and general conduct will not be eligible to be granted any visa to which criteria 5001 applies.