Yes. A granted 820 is a temporary visa and can be cancelled under the general powers in the Migration Act 1958. Three of them account for almost every partner visa cancellation: section 109 for incorrect information given in connection with the application, section 116 for grounds arising after grant, and section 501 on character grounds. The Act says these powers do not limit each other, so more than one can apply.
The three powers, and what each covers
Section 109 — incorrect information
Section 109 applies where the holder did not comply with the Act's obligations about giving correct information in the application, in a passenger card, or in notifying changes. It is broader than people expect: it applies whether the non-compliance was deliberate or inadvertent, and whether or not the Department learnt of it from the holder.
There is one real protection. If the holder complied with those obligations, the visa cannot be cancelled under this Subdivision because of any matter that was fully disclosed in doing so. Disclosure at the time is the defence; explanation afterwards is not. In deciding whether to cancel, the Minister must have regard to circumstances prescribed in the Migration Regulations 1994, including whether the grant was based on the incorrect information, the circumstances of the non-compliance, and the time since.
Section 116 — grounds arising after grant
Section 116 is the general power, and for partner visas the one that matters most. The Minister may cancel if satisfied of any of a list of grounds, including that:
- a fact or circumstance the grant was based on is no longer the case, or did not exist;
- the holder has not complied with a condition of the visa;
- the holder's presence in Australia is or may be a risk to the health, safety or good order of the Australian community, or to the health or safety of an individual;
- the visa should not have been granted because the application or grant contravened the Act;
- a prescribed ground applies.
Other subsections cover the Minister not being satisfied as to the holder's identity, incorrect information taken into account in a decision that enabled the person to apply or be granted a visa, and a benefit exchanged for a sponsorship-related event.
The first ground is the one couples ask about: if the relationship has ended, has a fact the grant was based on stopped being the case? It is a discretion, not an automatic consequence, and the family violence and child of the relationship provisions exist because the law does not treat every ended relationship alike. See if the relationship ends.
Section 501 — character
Section 501 allows cancellation where the Minister reasonably suspects the holder does not pass the character test and the holder does not satisfy the Minister that they do. The test covers a substantial criminal record, certain associations, sexually based offences involving a child, and a broader assessment of past and present conduct. The Minister may also cancel personally in the national interest, and must cancel where the person fails the test on a substantial criminal record or a child sexual offence and is serving a full-time sentence of imprisonment. See character requirement.
What happens before a cancellation
For a section 116 cancellation the Act requires a notice first, commonly called a notice of intention to consider cancellation. The Minister must notify the holder in writing that there appear to be grounds for cancelling the visa, give particulars of those grounds and of the information behind them, and invite the holder to show within a specified time either that the grounds do not exist or that there is a reason the visa should not be cancelled. Other adverse information about the holder must be put to them for comment. The invitation states whether the response may be in writing, at an interview, or by telephone.
Watch out
For a visa holder in Australia, the Migration Regulations 1994 prescribe 5 working days from notification to respond to a section 116 invitation, and the Minister may extend that by a further 5 working days. That is the whole window.
Section 109 has its own process: a notice of possible non-compliance, inviting the holder to show that there was compliance or, if not, to show cause why the visa should not be cancelled. For a temporary visa the response period is prescribed by the regulations or, if none is, a reasonable period; otherwise the Act sets 14 days.
Section 501 is different. Natural justice does not apply to a cancellation by the Minister personally on national interest grounds, or to a mandatory cancellation. After a mandatory cancellation the person is given notice and invited to make representations about revocation, which the regulations require within 28 days of being given the notice and the particulars.
What cancellation means
- Status. A cancelled visa ceases to be in effect immediately, and the former holder, if in Australia, becomes an unlawful non-citizen unless another visa is in effect straight away.
- Detention and removal. An officer who knows or reasonably suspects a person in Australia is an unlawful non-citizen must detain them, and unlawful non-citizens are liable to be removed.
- Family members. If a visa is cancelled under section 109 or 116, a visa held by another person as a member of that person's family unit is also cancelled.
- The 801. The permanent stage requires the applicant to hold a subclass 820 or a subclass 445 visa, so a cancelled 820 removes the basis for the subclass 801 permanent visa.
- Further applications. A person in Australia without a substantive visa whose visa was cancelled under section 109 or 116 is limited by section 48 to prescribed classes. Partner visas are on that list — see the section 48 bar and reapplying after a refusal.
- Exclusion periods. Many visa classes include public interest criterion 4013, which blocks a grant within three years of certain cancellations unless compelling or compassionate circumstances justify it, and criterion 4014, which does the same after leaving Australia unlawfully. The subclass 820 criteria include neither, but other visas commonly do.
Review rights
A decision to cancel a visa held by a person in Australia at the time of cancellation is generally a reviewable migration decision, reviewable at the Administrative Review Tribunal. The notice must specify the ground and, where there is a review right, state the time in which to apply, who can apply, and where. The same unextendable time limits apply as for a refusal — see ART deadlines and fees and appealing at the ART.
Section 501 sits outside that scheme. A delegate's section 501 decision, and a delegate's decision not to revoke a mandatory cancellation, are reviewable under a separate provision, while a decision the Minister makes personally cannot be reviewed on the merits. If a section 109 cancellation is set aside, the Act treats the visa as never having been cancelled.
What to do when a notice arrives
Answer it, inside the period. A notice of intention to consider cancellation is not a decision you can appeal — it is the only chance to put your side before the decision exists, and it must engage with the ground stated, with documents and usually a statement from the sponsor. Keeping the Department informed of changes prevents many of these notices; see telling Home Affairs about changes and 820 visa conditions and obligations.
A response prepared by an Australian migration lawyer is more likely to succeed, because five working days is enough only if you already know which ground you are arguing and what the decision maker must consider.
What to do next: read the notice for the exact section it relies on, then why 820 visas are refused for how the same criteria are assessed, and working with a migration lawyer if you need someone quickly.
Common questions
On what grounds can an 820 be cancelled?
Mainly three. Section 109 of the Migration Act 1958 allows cancellation where incorrect information or a bogus document was given in connection with the application. Section 116 is the general power and covers grounds arising after grant, including that a fact the grant was based on is no longer the case, that a visa condition has not been complied with, or that the holder's presence may be a risk to the health, safety or good order of the Australian community. Section 501 deals with character.
Will I get a warning before my visa is cancelled?
In most cases yes. Before cancelling under section 116 the Department must notify you in writing that there appear to be grounds, give particulars of those grounds and the information behind them, and invite you to show that the grounds do not exist or that there is a reason the visa should not be cancelled. A similar notice process applies under section 109. The main exceptions are the Minister's personal powers and mandatory cancellation under section 501.
How long do I have to respond to a notice of intention to consider cancellation?
For a section 116 notice given to a visa holder in Australia the prescribed period is 5 working days from notification, and the Minister may extend it by a further 5 working days. That is not enough time to gather evidence from scratch, which is why these notices should be taken to a professional the day they arrive.
What happens to my 801 if my 820 is cancelled?
The permanent Partner visa generally requires you to hold a subclass 820 or a Dependent Child subclass 445 visa, so a cancelled 820 removes the basis for the 801. The cancellation also makes you an unlawful non-citizen unless you hold another visa immediately afterwards, which brings detention and removal powers into play.
Can I appeal a cancellation?
Usually. A decision to cancel a visa held by a person who is in Australia at the time of cancellation is generally a reviewable migration decision, reviewable at the Administrative Review Tribunal, and the same short time limits apply as for a refusal. Cancellations under section 501 are not reviewable under the ordinary review provisions; a delegate's section 501 decision can be reviewed by the Tribunal under a separate provision, and a decision made by the Minister personally cannot be reviewed on the merits at all.
Sources
Keep reading
Appealing an 820 Refusal at the ART
How review of an 820 partner visa refusal works at the Administrative Review Tribunal: who can apply, the strict deadline, the fee, the hearing and the outcomes.
Read the guide →
ART Deadlines and Fees for Partner Visa Reviews
The time limit for applying to the ART after a partner visa refusal, how notification is counted, the review fee, the hardship reduction and the refunds.
Read the guide →
Ministerial Intervention After a Partner Visa Refusal
How ministerial intervention works after a partner visa refusal is affirmed by the ART: section 351, why the power is personal, non-compellable and rarely used.
Read the guide →