Notice of Intention to Consider Cancellation

Overview

Department of Home Affairs (DHA) will send you this Notice plus other documents such as your criminal record. DHA will ask you to comment on the information.

DHA will then prepare an Issues Paper. It will include all the relevant information DHA has collected from you and others. The Issues Paper is given to a decision-maker.

You should write to DHA explaining why you think your visa should not be cancelled

The decision-maker will consider the Issues Paper and decide to either cancel your visa OR give you a warning.

DHA will write to you to tell you what they have decided. You will receive either a Notice of Visa Cancellation letter or a warning letter.

If your visa is not cancelled, and you only receive a warning, you still might be cancelled in the future if you are convicted of other offences.

If your visa is cancelled you can appeal to the Administrative Appeals Tribunal (AAT)

How to respond to a Notice of Intention to Consider Cancellation

The Notice asks you to respond to two questions:

Question 1: “Do you pass the character test?”
You have 14 days from the date of the Notice to answer this question.

Question 2: “Should your visa be cancelled?”
You have 28 days from the date of the Notice to answer this question.

Question 1: “Do you pass the character test?”

Firstly, check that the criminal record sent to you is correct. If you have been sentenced to more than 12 months in prison or at least two separate prison terms totalling more than 2 years, then you will have a “substantial criminal record” and fail the character test. In this case you do not have to write to DHA to tell them that you do not pass the character test. However, you still need to write to tell DHA why your visa should not be cancelled.

If the information is not correct, write to DHA and explain why the information is wrong – perhaps the list includes offences which are not yours (they belong to a person with the same or similar name) or perhaps the sentences are incorrect. You should attach evidence to support what you say. You may be able to get the lawyer who represented you at your criminal trial to help you get this information.

If you are appealing your sentence or conviction, and your appeal has not been heard, tell DHA this. It is common for DHA to put off making a decision until all appeals have been finalised.

Remember: You have 14 days to tell DHA if your criminal record is not correct or incomplete, unless you get an extension

Question 2: “Should your visa be cancelled?”

This is your chance to tell DHA why you think your visa should not be cancelled.

Your response should give reasons why, even though you have a criminal record, your visa should not be cancelled. Tell your side of the story in your own words.

If you are able to do so, it is useful to do a statement about your life to try and explain the circumstances of your offending, your background, your childhood etc.

You do not have to send all the information at the same time – you can keep sending more information until the due date. You can even send information up until the time the decision is made about your visa – sometimes this is after the due date.

Remember: you have 28 days to answer this question, unless you get an extension.

Your side of the story

DHA does not have to cancel your visa if you fail the character test. DHA will look at factors such as the risk of harm to the Australian community if you stay and the consequences for you and your family if you have to leave Australia.

The policy that DHA uses in deciding whether or not to cancel your visa is in a document called Ministerial Direction 41. A copy of this will be provided to you with the Notice. It contains detailed guidelines about what DHA might take into account when it is thinking of cancelling your visa. These are called “primary considerations” (which DHA must take into account) and “secondary considerations” (which DHA may take into account).

Primary considerations

The primary considerations which DHA must consider are:

1. The protection of the Australian community which includes:
   1. The seriousness and nature of the criminal offence(s); and
   2. The risk that you might re-offend.
2. Whether you came to Australia as a child.
3. The length of time you have lived in Australia prior to committing an offence.
4. Australia’s human rights obligations.

These are considered in more detail below.

1(a) The seriousness and nature of the criminal offence(s)

DHA will have your criminal record so will know about the types and number of offence/s you have committed. However, they will not know what was going on in your life at the time you committed the offences so this is your chance to explain the background to your offence(s). Some things you can cover here include:

• what type of offence you have committed;
• the sentence(s) you received;
• the amount of time between each offence;
• the amount of time that has passed since your most recent offence;
• whether or not your offence is on the list of “serious offences” in Ministerial Direction 41 (if it is not on this list you should point this out).

DHA will consider any information (or mitigating factors ) which gives some background to why you committed the offence. This includes information about what was happening in your life at that time.

“Mitigating factors” are things that might make an offence less serious or help explain it, and might include:

• a drug or alcohol addiction at the time of the offence;
• your age at the time of the offence;
• any mental health problems at the time of the offence;
• circumstances in your family background or childhood, for instance a history of violence or abuse against you; or
• other personal circumstances, for instance, losing your job, you had problems in your family, with your husband/wife or children.

 Important

It is important to show that you understand the seriousness of the offence, particularly the consequences for the victim(s).

1(b) The risk that you might re-offend

Here you should provide information about the steps you have taken toward rehabilitation, and your plans for when you are released from prison. You will need to show that the steps you have taken, or plan to take, will reduce the chances that you will commit another offence. For example, you might say that you are planning to go into a rehabilitation program, or that you have a job lined up.

You should also list the ties you have to the community, how you have contributed to your community in the past, and if you plan to contribute in the future. For example you might have coached a local football team, or have been involved in a church community.

The kinds of information you can use to support your response are:

• evidence of any drug and alcohol courses, anger management courses, or education you have done since your last offence;
• whether a significant period of time has passed since your last offence and you have been living in the community during that time;
• that you have never breached a court order (such as bail, parole or a bond), or that your last breach was a long time ago;
• that you have never breached correctional centre rules, or that your last breach was a long time ago;
• anything positive that a judge or magistrate or other professional (such as a psychologist or parole officer) has written about your rehabilitation;
• information about people in the community who can support you and help you avoid any further offending, explaining who they are, how you know them, and how they will help you; and
• examples of ways that you have helped your community, including your friends, family, church, sports club, or other people in the community (for example, volunteer work, coaching a sports team, caring for someone who needed help).

2. Whether you came to Australia as a child

In this category you can provide information about how long you have lived in Australia and when you arrived. If you came to Australia when you were under 18 years of age, and spent what is known as your “formative years” in Australia this is important to point out. Your “formative years” are generally between the ages of 8 and 15.

The kinds of details you might include are:

• how old you were when you started living in Australia;
• that you grew up and went to school in Australia; and/or
• that you have never/not often returned to your country of origin.

3. The length of time you have lived in Australia

If you have lived in Australia for a long time it is important to point this out. Include here things like:

• if you have been in Australia for, say, longer than 10 years;
• how long you were in Australia before committing any offences;
• how many of your family members live in Australia and how close you are to them;
• whether you have a partner in Australia and whether they are an Australian citizen.

4. Australia’s human rights obligations

Australia has agreed to meet certain human rights standards by signing a number of documents called International Conventions. These include the Convention on the Rights of the Child (CROC), the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the Refugee Convention. DHA must consider whether cancellation of your visa would breach any of these Conventions.

(a) Children

A very important international obligation is contained in the Convention on the Rights of the Child (CROC). DHA must consider whether any children (less than 18 years old) would be affected if you were removed from Australia. This includes your own children or other children you have looked after or are close to and might include nephews and nieces, or even your brothers and sisters. DHA must take into account principles such as the rights of children to grow up with their family and to have a relationship with their parents and other carers. This is known as deciding what is in the best interests of the child.

The kinds of information you can provide include:

• whether you have children in Australia and their ages;
• whether they are Australian citizens;
• what relationship you have with those children – parent, guardian, carer, aunt/uncle;
• how close the relationship is (What kind of care have you given to the children? Did you live with them before you went to prison? How often do you see them now?); and
• how your children would be affected if you were sent away from Australia (What would happen to them if they were separated from you? Would they be able to go with you and start a new life in another country? How would this affect them – would they know the language, would they be able to go to school, get health care etc.?).

(b) Refugee claims

Another international obligation DHA must consider is whether you would be at risk of persecution, torture, or other cruel, inhumane or degrading treatment if you were sent back to your country of origin. This is particularly important if you came to Australia as a refugee.

You should include information about whether you:

• came to Australia on a refugee visa;
• fear that you would be harmed if you had to return to your country of origin, including who would harm you and why; and
• fear that you would be killed or at risk of serious harm or other mistreatment if you had to return to your country of origin.

Secondary considerations

The secondary considerations which DHA may consider are:

1. Family ties to Australia
2. Your age and health
3. Links to your country of origin
4. Hardship to you or your family
5. Your level of education
6. Any warnings from DHA you have received in the past.

Under secondary considerations, you can provide information about the difficulties you might face if you have to leave Australia and go to your country of origin. You can also talk about how your family would be affected.

The kinds of information you can provide include:

1. whether you will have any support in your country of origin from family or friends;
2. whether you will have access to social security or health care or education;
3. any health problems that could be affected if you had to leave Australia – what sort of treatment or services you need and whether you will be able to get these in your country of origin;
4. whether you will you be able to communicate with people or find the help you need including whether you speak the language; and
5. your level of education and whether you can read and write in English and the language/s of your country of origin?

You can include information about how your removal from Australia might affect the people you are close to in Australia, especially if anyone in Australia relies on you for anything (for example, money or practical help). You can also include any links you have to the Australian community or a particular community group. Examples of this kind of information you can include are:

1. whether you have a wife, husband or de facto or girlfriend/boyfriend in Australia, including whether he or she is an Australian citizen;
2. any responsibility you have to care for an Australian citizen (such as a child, a parent, someone with a disability);
3. whether you support anyone financially in Australia and why;
4. if your family members would have to leave Australia with you, the difficulties they would face to settle in your country of origin; and
5. examples of help or work you have done in the community such as for any community groups or volunteer work like coaching a sports team.

“Independent evidence”

Independent evidence is information from other people or sources which supports what you say. Where possible, try to include independent evidence.

Include documents like reports by doctors or psychologists, parole and pre-sentence or pre-release reports, and other letters or reports by qualified people.

Collect letters of support from as many people as possible – these can be from friends and family, as well as employers, community leaders and others. If someone is saying that you have a good character they should also say that they know about your criminal record. Other letters of support can be from people who will help you (by giving you a job or a place to live) when you get out of prison.

Time limits

If you do not know how long you have to respond to the Notice of Intention to Cancel your visa, call the National Character Consideration Centre (NCCC) and they will tell you. The phone number is.

If you cannot provide your response within the time allowed, ask for more time. To do this contact the NCCC. Do not wait until the last minute. You should ask for more time as soon as you know that you will need it.

Even if you send in information after the time limit has expired, DHA must still take that information into account if they have not yet made a decision. This means that if the time limit for you to respond to the Notice has ended and DHA has refused to give you more time, you can still send in information and hope that it is received before DHA makes the decision. HOWEVER you should always try to provide any information within the time limit you are given.

Sometimes DHA will find out more information about you after it has sent you the Notice. When this happens, it will send you a copy of this additional information and give you some more time to respond to it.

Important – How to  calculate the time limit

To calculate your time limit to respond to a Notice of Intention to Consider Cancellation, look at the date on the last page of the Notice letter and add 7 working days if it was posted to you. Then add another 28 days (including weekends). If the Notice was faxed or emailed to you, add 28 days (including weekends) from the date on the letter (not the date you received it, unless this was the same day). See 5. Working out time limits for an example of how to work out time limits to respond to a Notice of Intention to Cancel.

Waiting for a decision

After you have sent your response to DHA, the best way to know what is happening with your visa is to keep in contact with the National Character Consideration Centre (NCCC). You can also give someone else permission (an “authority”) to speak to the NCCC on your behalf. This does not need to be a lawyer.

 

Important

If you are released from custody before you get a decision, you should contact the NCCC to give them your new postal address and telephone number. Otherwise, they might not be able to find you to notify you of the decision, and you might miss out on your right to appeal the decision if your visa is cancelled.

Can I be put in immigration detention to wait for a decision after I have finished my sentence?

No. If DHA has not cancelled your visa by the time your sentence has ended you will be released. If DHA is still only considering whether or not to cancel your visa, then your visa is still valid and there is no reason to detain you.

If your visa has been cancelled, see 4. My visa has been cancelled – what can I do?

Can I be put into immigration detention without warning when I am released from prison?

Yes. DHA will usually notify the prison by telephone or fax when the decision is made to cancel your visa, but this information may not be given to you immediately. If you are taken to immigration detention and not released, it means that your visa has been cancelled.