Visa Cancellation: Can I leave Detention?

Permanent Residents of Australia committing “significant” offences are sent to immigration detention once they have received a notification that their visa has been cancelled.

Visa holders who face such cancellations have already spent long jail terms in prison. Upon release from Prison, they are subject to the jurisdiction of the Department of Immigration and Border Protection and taken directly to immigration detention.

Those who are detained may have a right to review the cancellation of their visa at the Administrative Appeals Tribunal however are generally not able to leave immigration detention even during the review process. Such detainees are prevented from making an application for any visa to allow them to leave detention as a result of Section 501 of the Migration Act 1958 (Act).

Section 501 of the Act relevantly provides that ‘A person is not allowed to make an application for a visa at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if at an earlier time during that period, the Minister made a decision under section 501 to cancel a visa that has been granted to the person and that decision was neither set aside nor revoked before the application time’.

The Act however does not prevent a person in such circumstances from making an application for Protection or WR-070 Bridging Visa (Removal Pending) (RPBV). However, the RPBV is only available to a person after an invitation is extended to them by the Minister.

Footnotes are available upon request.

By Farhan Rehman, Partner at RSG Lawyers.

Contact information: Email: farhan@rsglaw.com.au Tel: (03) 9350 4440

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