Visa cancellation lawyer: what to check before you hire one

Many cancellations start with a notice that has a short response time. Here is what a lawyer or registered agent can lawfully charge for, what to confirm before paying, and what free help exists.

If your visa is being cancelled, the people who can lawfully charge you to respond are registered migration agents and Australian lawyers with a practising certificate. The hiring decision often comes early, because the notice that warns of a possible cancellation can set a very short time to reply. What follows is what to check, not which professional to pick.

Two stages, and why the first one matters

Generally, before cancelling under section 116, the Minister must give you written notice of the grounds, give particulars, and invite you to show that the grounds do not exist or that there is a reason not to cancel. Practitioners call this a notice of intention to consider cancellation; the Act does not use that name. See notice of intention to consider cancellation and section 116 cancellation explained.

The Migration Regulations set the response period for a person in Australia at 5 working days, and the Minister may extend it by a further 5 working days. That is a power, not a right. For a section 109 notice about incorrect information, the Act sets 14 days for holders of non-temporary visas, and a prescribed or reasonable period for temporary visa holders. The notice itself states your actual deadline. Notices can be emailed to the last address Home Affairs holds for you, and an emailed notice is taken as received at the end of the day it is sent.

The second stage is review at the ART, if your decision letter says the cancellation can be reviewed. The Act makes the cancellation of a visa held by someone in Australia reviewable unless it falls within listed exceptions, which include decisions made in immigration clearance, section 501 decisions and some decisions the Minister makes personally. The ART application is due within 28 days of notification, or 14 days if you were in immigration detention on the day you were notified, and the ART says it has no power to extend that. The fee is A$3,727 for most migration decisions. The ART says it will automatically expedite a review of a visa cancellation where possible.

What a hired professional can lawfully do and charge for

The Act's fee ban covers two kinds of help. "Immigration assistance" includes advising a cancellation review applicant and representing them at the ART. "Immigration representations" means communicating with the Minister or the Department on someone's behalf. A person who is not a registered agent, or a lawyer acting in connection with legal practice, must not ask for or receive a fee for either, and the penalty is up to 10 years' imprisonment. Close family can help, but cannot charge.

Section 501 cancellations on character grounds follow different rules and shorter deadlines; see hiring a section 501 lawyer.

Confirm who they are

The step-by-step version is in how to check a migration agent is registered.

Registered agent: search the OMARA Register by name, business name or MARN. The OMARA says a correct search with no result means the person is not registered. Look for a caution or suspension note.
Lawyer: lawyers generally do not appear on that Register. Confirm the practising certificate with the state or territory legal professional body.

What the agreement should say

A registered agent must have a written, signed service agreement in force before doing immigration assistance, must give you the OMARA consumer guide first, and cannot take money before the agreement is in force. Fees must be an hourly rate with a time estimate, or a fixed fee, including GST. Lawyers work under state and territory legal profession law, so ask for a written costs agreement and estimate.

For a cancellation, ask these questions in writing:

Does the agreement cover the reply to the notice, the ART application, and the hearing, or only the first?
Who will lodge the reply, and when? Will you get a copy of what is sent?
Does the price include the ART fee of A$3,727? It is a separate government charge.
How and when are refunds paid, and how fast will your documents be returned? Registered agents must return documents within 14 days of a request.

Your status after cancellation

Under the Act, if you are in Australia and your visa is cancelled, you become an unlawful non-citizen unless you hold another visa in effect at that moment. A Home Affairs cancellation form (2018 design) says that unless you are granted a further visa, you will be detained and removed from Australia. Your status is a fair thing to raise with any practitioner, and read what happens to your status after a cancellation.

Free help

Legal Aid NSW says its Immigration Service gives free advice on matters including visa cancellations, and can represent eligible people at the ART. It also says it does not cover student, visitor, or economic stream visa advice, so ask before assuming. The Immigration Advice and Rights Centre in NSW lists visa cancellations among its free advice areas for people in NSW experiencing vulnerability, by appointment and possibly subject to income tests. For other states, the ART lists the legal aid commissions. See free and low-cost help after a visa refusal.

What this page cannot tell you

Whether your cancellation can be reviewed, and what your deadline is, are stated in your notice and decision letter. A registered agent, an Australian lawyer or a free service can go through them with you. This page is general information only.