Cancellation of visa (and deportation) is mandatory for people who are in prison and who failed the character test: section 501(3A) of Migration Act 1958. A person who has been sentenced to imprisonment of 12 months or more (even if it is at any time in the past) will fail the character test.
This means deportations and cancellations of visas are now automatic, as it is mandatory, and moreover without notice.
Can Tang Law Help Me?
Tang Law has a team of fully qualified and trained lawyers who understand the Migration legal framework and dedicated to practicing Migration Law. If you are facing visa cancellation and deportation, you will need to act promptly as there is a strict time limit for you to exercise or protect your rights.
What Should I Do If I Receive A Notice Of Visa Cancellation?
If your visa was cancelled as a result of your criminal conviction, you will have an opportunity to request for revocation of the cancellation decision. However, you must do so within 28 days. If you failed to apply within this timeframe, you will lose your opportunity. Consequences are that you will be held in the detention centre until you are deported.
The decision of cancellation itself cannot be appealed; rather, you must apply within the timeframe to revoke the cancellation decision. If you are successful, the cancellation decision will be revoked. The effect of revocation is that the cancellation decision will be reversed and your visa reinstated.
In making the request for revocation of the cancellation decision, you should also make proper submissions and provide the Department of Home Affairs (formerly DIBP) with supporting materials regarding your personal circumstances and persuade the Department to revoke the cancellation decision.
Making Submissions For Revocation Of Visa Cancellation
Whilst the decision-maker has the discretion to decide whether to revoke a mandatory visa cancellation, the decision-maker must take into account primary considerations:
- Protection of the Australian community from criminal or other serious conduct. This involves giving consideration to the nature and seriousness of your conduct to date and risk to the Australia community should you further engage in other serious conduct.
- The best interest of minor children in Australia. This consideration is only relevant if there is a child under 18 years old at the time the decision whether to revoke the mandatory cancellation is expected to be made.
- Expectations of the Australian community. This consideration involves determining whether there is an unacceptable risk that you will re-offend or engage in serious conduct again.
The decision maker also has to take into account other relevant considerations such as the strength, nature and duration of ties you (and your family) have to Australia, impact on Australian business interests if your visa is cancelled, the extent of any impediments that you may face if you are removed from Australia to your home country in light of your age, heath, language or cultural barrier, etc.
Supporting Materials For Your Submissions
This depends on your circumstances and which considerations are most relevant to your situation. In a very general nutshell, you may need to provide independent support documents such as character references, expert reports, pre-sentencing and re-release reports, etc.
Remember, you have to persuade the decision-maker, and the decision-maker in coming to a decision, has to follow a set of guidelines. You should make truthful submissions that can satisfy the guidelines followed by the decision-maker and provide credible documents or evidence in support of each of your submissions made.
Can I Appeal If The Visa Cancellation Decision Is Not Revoked?
There are two (2) possibilities here:
- Where the decision not to revoke is made a department delegate, you may apply to the AAT for review.
- Where the decision is made by the Minister, you may appeal to the Federal Court for judicial review. The AAT is not able to review the Minister’s personal decisions.
I Am Still Feeling Vulnerable, Unsure Of What My Rights Are And What I Can Do?
Cancellation of visa is a very serious matter with serious consequences. If you are not sure what to do, immediately consult Tang Law and we will assign an immigration lawyer to handle your case as soon as possible.