Character ground cancellation/revocation

Has your Australian Visa been cancelled on Character Grounds? You can request that the Minister revoke the cancellation or you can appeal the cancellation.

Visa cancellation on character grounds is a very serious issue. Unless you manage to overturn the decision, you will be forever prevented from returning to Australia. And this is not all: if you are inside Australia, you can’t apply for another visa so even if you appeal the decision, you will be in immigration detention until the appeal is heard which makes it harder to protect your rights.

Appealing the decision

If you contact us after your visa has been cancelled (or refused) on character grounds, this means you are likely in Immigration Detention. As a first step we will either visit you in person or speak to you in detail on the phone to discuss your case.

The most important is that there is a very limited timeframe to lodge an appeal to the Administrative Appeals Tribunal. It is critically important that you enable us to lodge your appeal on time.

Preparing for the hearing

Once we have lodged your appeal, we immediately start preparing for the hearing, because the whole process from start to finish is only 84 days long.  We have to work out with you a good strategy from the very beginning because:

• We have to give our supporting evidence to the AAT well ahead of the hearing. There are procedural timeframes to be followed. This means if we don’t give our evidence on time (for example witness statements) to the Department’s lawyers (who will also appear at the hearing) then you will be prevented from using that evidence at the hearing. Imagine this scenario: a psychiatric report would help your case but because we don’t get engaged on time, we are unable to obtain the report on time and cannot use it at the hearing, meaning you miss out on good evidence that would otherwise help you. So we need to work out what evidence we will need at the very beginning.

• There will be an early directions hearing. The Tribunal will hold a directions hearing approximately 6 weeks after we lodge your appeal. The Tribunal will want to know what is our plan for the hearing. It’s important to have a plan by this stage.

• The Department will oppose your application. The Department will send lawyers to oppose your application. They do this all the time and they will be well prepared. So we need to anticipate their attacks and make sure we have all the evidence and arguments against them.

At the hearing

The hearing is much like a courtroom trial you would have seen on TV before. The Tribunal member sits in the front, and the lawyers for both sides make submissions, present witnesses, cross-examine witnesses, and make arguments. The hearing can last 2 days.  It is likely to be held towards the end of the 84 day period and a decision will be made by the 84th day (from the date on which you filed your appeal). 

Automatic cancellation?

If you are serving a full time prison sentence and you fail the character test, then your visa will automatically be cancelled. Without prior notice. In practice, this means that you will be taken from jail straight to Immigration detention.

However, you can request a revocation, meaning that the Minister (or his or her delegate) can decide to return your visa to you. In your revocation request, you need to explain in detail what are the grounds on which you think your visa should be returned to you. For example:

• You have spent a long time in Australia. If you have been here for a significant period (say 10+ years) then it is likely you have no real connections to your home country anymore which is something you should highlight.

• No remaining relatives in your home country. If you don’t have family support in your home country, it is a factor which would be taken into account in your favour.

• You have family here. If you have family in Australia who are themselves Australian citizens and cannot leave the country, this would also be considered in your favour. 

How we can help

If you submit a revocation request, it will be scrutinised by the Department of Immigration. They will want supporting evidence and won’t just take your word without more.

We have had several successful revocation applications. We help our clients by identifying their strongest arguments, collating all relevant evidence, and drafting powerful submissions on their behalf. We speak with family members, employers, community members who can provide supporting evidence. We obtain relevant court records and highlight mitigating circumstances. In short, we provide the Department everything they want to see in order to make a positive decision.