Any type of visa (permanent or temporary) may be cancelled by the Department of Immigration and Border Protection (DIBP) if you do not pass the “character test”. The character test is defined in section 501(6) of the Migration Act 1958 (the Migration Act). Applications for a visa can also be refused if you do not pass the character test.
You will not pass the character test if you:
- have a “substantial criminal record” (see below for definition); or
- have an association with an individual, group or organisation which is suspected of being involved in criminal conduct; or
- are not of good character having regard to your past and present criminal or general conduct; or
- are at significant risk of engaging in future, unacceptable conduct.
What is a substantial criminal record?
A person will have a substantial criminal record if they have been:
- Sentenced to a period of imprisonment of 12 months or more;
- Sentenced to a number of shorter periods of imprisonment (at the same time or at different times) that add up to 2 years or more; or
- Found not guilty due to mental illness and detained.
If you have a substantial criminal record you fail the character test and DIBP may cancel your visa.
When calculating a “period of imprisonment”, DIBP will include parole periods, suspended sentences, time spent in periodic detention, or time spent in drug rehabilitation or mental health facilities if they were ordered as a sentence by a court. Sentences received for juvenile offences can also be included.
What happens if my visa is cancelled?
- If your visa is cancelled you cannot remain in Australia unless you get another type of visa.
- You cannot apply for any other visa except a protection (refugee) visa or a bridging visa.
- Once you have finished your prison sentence, you will be removed from Australia and returned to the country of which you are a citizen. Most of the time this is the place you were born.
- After you have been removed from Australia you will never be able to return.
- Cancelling a visa – how it works
DHA is notified that you have a substantial criminal record.
This usually happens while you are in prison. DHA will generally not start the cancellation process until the last six months of your sentence. However DHA can consider cancelling your visa at any time either while you are in prison or after you have been released.
DHA sends you a Notice of Intention to Consider Cancellation.
This Notice means DHA is considering cancelling your visa. No final decision has been made at this stage. You will be given a chance to tell DHA why your visa should not be cancelled.
The Minister for Immigration and Citizenship can also cancel your visa. This means the Minister makes the decision personally and not an officer of DHA. The Minister will not follow the same process described here and there is no appeal to the AAT for this type of cancellation. You should get legal advice (see 8. Important contacts) if the Minister is considering cancelling your visa.
DHA cancels your visa and sends you a Notice of Visa Cancellation.
This means a decision has been made to cancel your visa. You need to act quickly (see4. My visa has been cancelled – what can I do?).
The section of the Department of Home Affairs that deals with visa cancellation on character grounds is the National Character Consideration Centre (NCCC).
My visa has been cancelled – what can I do?
Applying to the Administrative Appeals Tribunal (AAT) to review the decision
If your visa has been cancelled by DHA, you can apply for a review of the decision at the AAT. There are very strict time limits. You must apply for review within 9 days. To work out the exact date you must apply to the AAT see Calculating time limits section below.
The steps you will need to take are:
|1. Complete an Application for Review of Decision Form. You can ask the AAT to send you this form. You can send it to the AAT by post or fax.|
|2. Prepare your documents. It is best to send with your Application to the AAT a copy of:
a. the Notice of Visa Cancellation; and
b. all of the other documents that DHA sent you with your Notice of Visa Cancellation.
It is important that you keep copies of everything you send to the AAT.
|3. Pay the application fee|
|4. Seek legal advice or assistance. It is possible to represent yourself at the AAT, but you can try to get some helpful tips from a lawyer beforehand. If you are not confident speaking English, you can also ask the AAT for an interpreter.|
Calculating the time limit to apply for a review in the AAT
There is a very short and strict time limit to apply for a review to the AAT (9 days).
The time limit of 9 days is from the date you were deemed to be notified of the decision. It is important to know that this is not always the date that you received your Notice of Visa Cancellation or heard about it.
The amount of time you have to lodge your application depends on how you received the Notice of Visa Cancellation. It will depend on the date you are deemed to have been notified of the decision to cancel your visa. This may be different to the date on the Notice. An example of how to calculate time limits is in 5. Working out time limits.
If the Notice of Visa Cancellation was posted to you:
- The date you are deemed to have been notified of the decision is 7 workingdays (don’t count Saturday and Sunday or any public holiday) from the date on the Notice;
- You then have 9 days (including Saturday and Sunday) from the date you are deemed to have been notified to lodge your Application to the AAT. If this date falls on a weekend or public holiday, then you can lodge your application on the next working day.
If you received the Notice of Visa Cancellation by hand, fax or email:
- The date you are deemed to have been notified of the decision is the day after it was handed, faxed or emailed to you;
- You have 9 days (including Saturday and Sunday) from the date you are deemed to have been notified to lodge your Application to the AAT. If this date falls on a weekend or public holiday, then you can lodge your application on the next working day.
You cannot ask for extra time to make an application for review, unless there was something wrong with the Notice of Visa Cancellation itself or the way that you received it.
This does not happen very often but if you think it might have happened to you get legal advice immediately.
Going to the AAT
You will be given a File Number by the AAT when you lodge your Application for review. It will have the year when you lodged your application and another number – for example:2011/1234. You should give your file number whenever you contact the AAT. This will make it easier for them to find out about your case.
After you have lodged your Application, there are very strict time limits for you to provide more evidence or information to support your appeal. It is very difficult to get extensions. This is because the AAT must make a decision within 84 days of the date you are deemed to have been notified of the decision to cancel your visa. If the AAT does not make a decision within the 84 days, the decision to cancel your visa will automatically be “affirmed”. This means that the AAT will not be able to change DHA’s decision and your visa will remain cancelled.
The directions hearing
The first thing that will happen is a directions hearing.
At the directions hearing, an officer of the AAT will:
- explain the process;
- make sure you understand what you need to do to get ready for the final hearing;
- make sure you understand when you need to provide your written evidence; and
- set a date for the final hearing.
The directions hearing will probably be held by telephone and is usually short. Sometimes there are legal issues that also need to be dealt with at the directions hearing. DHA will be represented by a lawyer at the AAT. You should get the contact details of DHA’s lawyer so that you can send your evidence to them.
At the directions hearing it is important for you to write down:
- the dates of your final hearing; and
- the date by which you need to give your evidence to the AAT and DHA.
The final hearing
The final hearing is where the AAT will consider all the evidence. It is advisable to attend the hearing. You might be able to do this by telephone if you cannot go in person, but it is best to attend in person.
The AAT will either:
- affirm (or confirm) the decision to cancel your visa; or
- overturn the decision, and give you back your visa.
The AAT must make its decision within 84 days of the date you are deemed to have been notified of the decision.
The AAT can provide an interpreter for you at the hearing. If you need an interpreter, contact the AAT (or ask someone else to contact the AAT for you) a few days before your hearing to make sure an interpreter is organised for you. You can also get an interpreter for any of your witnesses.
Providing evidence for the final hearing
Evidence can be in the form of documents including statements, affidavits, letters of support, medical and other reports. It can also be the information you provided to DHA when you responded to the Notice to Consider Cancellation of your visa. You might have prepared a statement at the DHA stage, so there is no need to do another statement.
You must give all your evidence to the AAT and copies to DHA. This must be done no later than 2 working days before the hearing. If you do not give your evidence to the AAT and to DHA at least 2 working days before your hearing the AAT cannot look at it and take it into account.
A statement made by you or a witness should include the facts you want to tell the AAT, signed and dated at the end. You or any witness can also give evidence at the hearing.
If you or someone else wants to give evidence at the hearing, a statement or letter must be given to the AAT and DHA within the 2-day time limit. If a witness does not give a statement they cannot give evidence at the hearing.
You must give the AAT and DHA all your evidence at least 2 working days before the hearing.
When can I be removed from Australia?
If you do not have a valid visa you must be “removed” or deported as soon as possible. This means that if your visa is cancelled and you have completed the custodial part of your sentence, DHA can take steps to send you back to your country of citizenship. This means the country that issued you your passport. You can be removed even if you have not finished your parole period. However, if you have applied to the AAT, you cannot be removed until the AAT makes a decision.
If you have not applied to the AAT or the AAT has “affirmed” the decision to cancel your visa, there is usually nothing else you can do to remain in Australia. Sometimes you can go to court to challenge the decision of the AAT but this is very difficult to do.
What happens if I am removed from Australia?
If you are removed from Australia because your visa is cancelled, you will be taken to your country of citizenship. You may be given “post return support” which means that you might be given some money, some help with accommodation, transport and/or clothing costs. However, you will owe the Australian government money for your immigration detention and for the costs of your removal. Most importantly, you will never be able to return to Australia.
5. Working out time limits
Responding to the Notice
If the Notice of Intention to Cancel was dated 11 January 2011
And it was posted to you
Add 7 working days starting from the next day, 12 January
12, 13, 14, 17, 18, 19, 20 January
Add another 28 days
21 January to 17 February 2011
Your response to a Notice dated 11 January 2011 is due 17 February 2011
Applying to the Administrative Appeals tribunal (AAT)
If the date of the letter from DIBP telling you your visa is cancelled is 7 March 2011
And it was posted to you
Add 7 working days starting from the next day, 8 March
8, 9, 10, 11, 14, 15, 16 March
Add another 9 days
17 to 25 March 2011
Your application to the AAT is due 25 March 2011
How to write a response to a Notice
How to write a statement (for use at both DIBP and AAT stage)
How to write a letter of support
How to write a response to a Notice
See 7. Examples for an example of a response to a Notice of Intention to Cancel.
It follows the structure of Direction 41, which is the policy that DIBP looks at when deciding whether your visa should be cancelled, or whether you should just get a warning.
You should address each of the matters that is relevant to your circumstances – some will be more relevant than others. If they don’t apply to you, leave them out.
1. The protection of the Australian community
(a) The seriousness and nature of the conduct
- List all the offences you have been convicted of and write when you were convicted and what the sentences were. Mention any special circumstances which made your sentence shorter than normal.
- Did your offences involve any violence? If no you should say so, if yes, you should acknowledge this.
- Is your offence on the list of serious offences in Ministerial Direction 41? If the answer is no, say so.
- Write how much time there has been between each of your offences and how long it has been since your last offence.
- Were there “mitigating” circumstances which might reduce the seriousness of your offences? For example:
- drug or alcohol addiction at the time of the offence;
- your age at the time of the offence (if you were young);
- mental health problems at the time of the offence;
- circumstances in your family background or childhood (e.g. history of violence or abuse against you);
- other circumstances (e.g. you lost your job, had problems in your family or with your spouse or children);
- any facts of the offence that show that it was less serious than other examples of the same offence.
- Did the judge or magistrate who sentenced you say anything about any of the mitigating factors? If they did, refer to those comments.
Other relevant information
- Here you have a chance to show that you understand the effects of your behaviour on others (e.g. your family, your victim) and to explain how you feel about this.
- If you have done anything, or tried to do anything, to show you are sorry for what you did (e.g. apologise or pay compensation to the victim/s of your offence/s) explain this here.
- If there is anything else about your offence/s that you want the decision-maker to understand, explain it here.
(b) The risk that you might re-offend
- Think about the situation you were in before you went into prison and what was happening to make you offend. Explain what you have done to change yourself and to change your circumstances, so that there is little chance that you will re-offend. For example, whether you have:
- done any courses to deal with drug or alcohol problems;
- done any courses or had any therapy to deal with mental health problems or behaviour problems (e.g. anger management or decision-making);
- done any educational courses to improve your ability to get a job and be a useful member of the community (e.g. literacy or vocational courses).
- If you have done any courses, explain how they have helped you.
- If you feel you have made other positive changes, write how you have made those changes and how you are different. Who else has noticed the change and what did they see that was different? Include a letter of support from people who have noticed your changes.
- If you have never breached a court order (e.g. parole, bail, bonds, suspended sentences, or other promises to the court) or if your last breach was years ago, you should write this.
- If you have never breached prison rules, or if you have a prison record showing that you have not breached prison rules for a period of time, write this.
- Talk about any good things that you have done in the past for your family, friends, or community. For example, unpaid (or “volunteer”) community work; coaching sport; caring for a sick or disabled person; caring for children; attending church and/or helping the church community.
- Write who you will live with when you are released (or who you are living with now)
- Who are the people who will help to keep you out of trouble? Why will they help you and what will they do that will help you not to offend again?
2. Age when you began living in Australia and how long you’ve been here
- Write how old you were when you arrived.
- If you came to Australia with your family, and/or if you had family already in Australia when you arrived, you should explain this. Give the names of your family members.
- Give a brief history of where you have lived and what you have done since you came to Australia – include the schooling and other studies you have done and the jobs you have had.
- If you have lived in Australia for less than 10 years but you have strong connections (or “ties”) with people in Australia and the Australian community, you should write this, and give details of those ties.
- Write how you feel about Australia – do you feel like an Australian, do you feel that Australia is your home? If yes, write this.
3. International obligations
(a) The best interests of the child – this is about your children in Australia, or other children you are close to and have a relationship with
- Write how many children you have in Australia – give their names, ages, and whether they are Australian citizens. It is particularly important if they are under the age of 18, but you should still include them even if they are over 18.
- Write how often you see your children. If you are in prison, write how often they visit or how often you speak to them on the telephone or have other kinds of communication with them.
- Write what kind of relationship you have with your children now – Are you close? Do you support them financially or in other ways?
- Write whether you lived with your children before you went to prison and write about what kind of things you did with them.
- Are you close to any other children in Australia (e.g. step-children, foster children, grandchildren, adopted children, children who are not yours but who you treat as your own). Give their name, age, and relationship to you, how often you see them, what kind of support you give them.
- Write how long each child has lived in Australia and how strong their connection to Australia or people in Australia is. For example, are they doing well in school? Do they have friends? Are they attached to other people who live in Australia?
- Explain how each child would be affected if you had to leave Australia, including whether or not the child would leave Australia with you.
- If the child/children would leave Australia with you, how would this affect them? (e.g. write about the effect on their schooling, friends, relationships with other people, could they speak the language in the other country, would they know the culture, could they get the medical care and education they need in the other country?)
- If the child/children would stay in Australia, how would the separation from you affect them?
- Is there anyone else with parental responsibility for the child/children?
- If the child/children have said anything about not wanting you to leave Australia, write what they said.
- Write what role you want to play in the lives of your children in future. Write how you think you will be able to do this.
(b) Refugee or protection claims – this applies to people who are at risk of persecution if returned to their home country and might include people who came on a refugee or humanitarian visa
- If you got permanent residence because you were a refugee or if you came to Australia on a refugee or special humanitarian visa, write this and briefly explain what made you (and/or your family) leave your country of origin.
- If it is a long time since you left your country of origin but you still fear returning, write this and give reasons.
- If you did not come to Australia as a refugee but if you fear persecution (serious harm) in your country of origin for reasons of your race, religion, nationality, membership of a particular social group or political opinion, you should explain this. You should also get legal advice to see if you should apply for a protection (refugee) visa.
(c) Other international obligations
If you fear that you would face other types of harm, for example death, or torture and cruel, inhuman or degrading treatment or punishment in your country of origin, you should write this and give reasons why you fear this harm. Examples might be if your country of origin is at war (with another country or there is a civil war) or if you feel that you may face the death penalty for crimes you may have (or may be suspected of having) committed. If you feel that this section applies to you, get legal advice.
4. Other considerations
Family ties and other relationships
- Give information about any partner (husband, wife or de facto partner) you have in Australia. Write if they are an Australian citizen or permanent resident. Explain:
- how long you have known each other and how long you have been together;
- whether your partner is financially and/or physically dependent on you;
- how your offences and prison time have affected your relationship;
- what would happen to the relationship if your visa was cancelled and you had to leave Australia. Would your partner go with you or would they stay in Australia?
- List all the family you have in Australia, including all your relatives you have contact with. Give details of how close you are to them, how often you see them, how important they are to you.
- Write how your family will be affected if your visa was cancelled and you had to leave Australia.
- Explain if your age (young or old) makes it more difficult for you to leave Australia.
- If you are an older person and you cannot work or look after yourself, write if you would get the care or pension/income you need to survive if you have to return to your country of origin.
- If you are young and living with a parent (or someone who cares for you like a parent).
- Explain what you think might happen to you if you had to leave Australia and be separated from this person. How would you survive on your own?
- Explain any health problems you have and how they affect you.
- Make sure you give information about:
- any kind of care or help you need because of your health problems;
- the likelihood that you will recover from your health problems or whether they can only get worse;
- whether or not you would be able to get the treatment and care you need if you are returned to your country of origin (e.g. is the medication you need available in your country of origin, how much does it cost, is free health care available?);
- the likely effect on you if you cannot get the treatment or care you need.
Ties to the country that you will be returned to if your visa is cancelled
- If you have no connections, or not many connections, with people in your country of citizenship, explain this here.
- If you will have no-one to help or support you if you are deported, explain this here.
- If you can’t speak the language, explain how you will cope.
Hardship likely to result from deportation
- How bad would it be for you if you were deported? What do you think would happen to you?
- Would the people you are close to in Australia be able to travel to the other country to visit you?
- How bad would it be for the people you are close to if you are deported? Explain the effect your deportation would have on those people, especially if they are dependent on you for some kind of help or support that they cannot get from anyone else.
Level of education
- If you have a good level of education and can make a positive contribution to the Australian community through work or other activities, explain this here.
Attachments (here, you should list the documents you are using as evidence to support what you write in your letter. List each report, letter, statement, certificate for example).
Use your own words as much as possible.
How to write a statement
See 7. Examples for an example of a statement. You can do a statement at the Ministerial stage (before your visa is cancelled) or at the AAT stage (after your visa has been cancelled).
If you are preparing a statement for the AAT remember that you must include everything in your statement that you want to talk about at the AAT. If it is not in your statement, you can’t talk about it at the AAT hearing.
It is important in your statement to say everything that is relevant and that you want DIBP to know about you. Usually you should include the following:
- How long you have been in Australia
- When you came to Australia
- Whether you have any family in Australia, including children, and how they would feel if you had to leave
- Whether you have any relatives in your country of origin
- What would happen to you if you had to go back to your country of origin, including whether your partner and children could go with you
- Details of any medical or health issues you have
- Details of your criminal record
- Anything that was going on in your life at the time you committed the offences which might explain your crime/s
- How you now feel about your crime/s – whether you regret the things that have happened and why
- Any courses you have done either in prison or outside
- Why you will not re-offend if you are allowed to stay in Australia
- Who you will live with if you are allowed to stay in Australia
- How you will support yourself – and whether you have a job to go to.
This statement is your chance to tell DIBP the history surrounding your offending behaviour. It is also really important to tell DIBP why you are no longer a risk to the Australian community – this means telling them why you will not re-offend.
The reasons for this might be, for example, that you have undergone a drug and alcohol rehabilitation course in prison and you no longer take drugs; you have a strong, supportive family/partner and they will help to keep you out of trouble; you have children and you do not want to take the risk of having to leave them.
Use your own words as much as possible and make sure your statement is chronological – that is, make sure things are in date order.
How to write a letter of support
See 7. Examples for an example of a letter of support. It can be used by anyone who knows you and who wants to say they support you staying in Australia. It can be used by family members, friends, employers, religious or community representatives. It can be used at any stage in the cancellation process – while DIBP is considering cancelling your visa or after DIBP has cancelled your visa and you are appealing to the AAT. Remember that if a person gives you a letter of support to be used at the AAT they may have to give evidence at the hearing.
The main reason to get letters of support is so you can prove to DIBP that you are of good character, that you have support in Australia, and that you are not a threat to the Australian community.
Use your own words as much as possible.
The following are some of the things a letter of support should include:
- Who they are and what their relationship is with you. How long they have known you.
- A description of their relationship with you.
Is it a close relationship? How often do you see them or talk to them? If they come to visit you in prison, say how often. If they don’t, say why.
- The person should tell DIBP/AAT that they know about your criminal record.
They need to show that they know about your offence/s and that they will support you. If they know about anything that was going on in your life at the time of the offence (for example, you were drinking heavily, you had just split up from your partner, your parent had died, etc), they should write about this.
- If you have spoken to them about how you feel about your offence/s, they should include this in the letter.
If you have said anything to them about feeling bad about your criminal offence/s, they should put that in the letter. It is important to put anything in the letter that you have said or anything that they know about that shows you are unlikely ever to break the law again. If they think that you have changed since committing your offence/s, they should say how you have changed and why. For example, if you have undertaken a drug and alcohol course in prison, or an anger management course.
- What are your good qualities? What contributions have you made to the community?
If you have cared for anybody, like a child or a sick relative or friend, or supported someone financially, they should include something about that here. Have you done any community work that the person knows about? Do you have a good record of employment? They should write about anything that shows you have a good character and are respected by other people.
- What support will the person be able to give you on your release from prison?
If they are able to support you – financially or emotionally – this should be included in the letter. Maybe they can help you find a job, or a place to live.
- Say why they think you should be allowed to stay in Australia.
If they know your family members, they should say how they think they might be affected if you had to leave Australia. They should include any details they know about how your life might be in your country of citizenship. If you have spoken to them about how you would feel about leaving Australia, they should include those details.
Not all decisions are reviewable by the AAT. For example,
you cannot apply to have a decision reviewed by the AAT if the Minister for Immigration and Border Protection personally decides to refuse or cancel your visa under section 501 of the Migration Act 1958.