If you have a substantial criminal record and you are serving a jail sentence, your visa must be cancelled by law. This is called mandatory visa cancellation based on character grounds, under section 501(3A) of the Migration Act. And you can’t simply appeal the decision either. If you know of someone (perhaps a family member) who finds themselves in this situation, we can help but you need to act quickly.
Visa cancellation mandatory
To start with, it’s important to understand the situation we describe here is one in which your visa MUST be cancelled. In other words, it is not up to the Department of Home Affairs to decide if they cancel your visa or not. They must cancel it.
When this can happen
Your visa must be cancelled if you don’t pass the character test because you have a substantial criminal record AND you are serving a jail sentence. Substantial criminal record means that you have been convicted to prison for at least 12 months.
What this means in practice
Firstly, you do not get advance warning. They will not send you a letter advising that the Department of Home Affairs is considering to cancel your visa. Instead, the first thing you will be advised of is that your visa has been cancelled. If you are jail, they will take you from jail to immigration detention.
The other issue is that you can’t appeal the visa cancellation decision in the AAT. However, read on, as not all is lost.
What you can do to get your visa back
You have 28 days to write to the Department that they revoke the visa cancellation. This means you ask them to give you your visa back. You should outline all of your reasons which support your request. For example, if you think the Department is wrong and you do pass the character test, tell them why you believe this to be the case. Alternatively, you may wish to point to circumstances that weigh against the visa cancellation. For example you might have children here who need you. You may be able to show that you have developed very strong ties to Australia. You may also be able to show that you are not a serious criminal and so don’t pose a threat to the Australian community. There are many arguments which you may be able to make.
Once you have asked for the revocation of the visa cancellation, one of two things can happen. If the Department agrees with you, they will give you back your visa. If they don’t, then you can lodge an appeal but you have 9 days only. The only exception is if the Minister personally makes the decision not to revoke the cancellation. In that case, there is no right of appeal.
Your visa has been cancelled – what to do?
As soon as you receive notice of the visa cancellation, call us. We can help you by putting together robust submissions on your behalf to maximise your prospects of success. If you have already asked for a revocation but the Department has refused your request, we can help with the appeal.