VISA CANCELLATION: HOW, WHY, AND WHAT YOU CAN DO ABOUT IT
Whether permanent or temporary, an Australian visa can get canceled by the Department of Immigration and Border Protection (DIBP) or the Minister for Immigration. There are many reasons for visa cancellation, but the most common one is the failure to satisfy the character test requirements.
Visa Applicants/ Holders are expected to Be Law-abiding Persons.
Your stay in Australia is a privilege. The DIBP expressly states that. As laid out in section 501(6) of the Migration Act 1958, the stringent requirements of the character test apply to both visa holders and visa applicants.
If you are a visa holder and are found to be in contravention of the character test stipulation, the DIBP can cancel your visa. If you are an applicant, you might get a refusal.
The decision to cancel or refuse a visa on the grounds of character can also be made by the Minister for Home Affairs or the Minister for Immigration Citizenship and Multicultural Affairs.
You Might not Pass the Character Test for Reasons Such As:
· Having what the Australian government terms as 'substantial criminal record.'
· Having committed an offense in detention
· Being a member of a gang or criminal organization
· Having committed sexual crimes against children
· Having a high propensity to engage in unacceptable conduct or unlawful activities in the future
What is 'Substantial Criminal Record?
You are considered to have a substantial criminal record if you have been:
· Sentenced sentence or life imprisonment
· Sentenced to many brief jail terms that together amount to 2 years or more
· Acquitted on the grounds of being mentally unsound
· Involved or are currently involved with a criminal individual or organization
If you have a substantial criminal record or fail to meet the character requirement, your visa will get canceled. Following a visa cancellation on the grounds of character, former visa holders are deported or removed from Australia. The person is barred from applying for any other visa.
The DIBP also Considers the below to be Periods of Imprisonment as Ordered by a Court:
· Parole or parole sentences
· Periodic detention
· Time spent in rehab
· Time spent in a mental institution
· Juvenile sentences
How an Australian Visa Gets Cancelled
Department of Home Affairs receives a report of your substantial criminal record. Typically, this happens after sentencing. The department often only starts the process of visa cancellation six months before your release. However, cancellation may happen while you are in prison or after your release.
You receive a Notice of Intention to Consider Cancellation.
Before moving to cancel your visa, DHA will send you a notice. Around this time, no decision has been made regarding the cancellation. You can appeal with the Administrative Appeals Tribunal on why DHA shouldn't cancel the visa.
Please note that if the Minister is the one who decides to cancel your visa, there will be no appeals process.
The visa gets canceled, and you receive a Notice of Visa Cancellation.
Your visa may get canceled even after appealing to AAT. The cancellation will also happen if one does not appeal after receiving the Notice of Intention to Consider Cancellation.
The appeal before Deportation and Removal
· If you get your visa canceled, you will no longer be allowed to remain in Australia except by applying for a Bridging Visa or the Temporary Protection visa.
· If the DHA or Minister for Immigration cancels your visa, you will be removed from Australia (after the prison sentence) and returned to your mother country.
· After deportation or removal from Australia, once will never be allowed back.
Your visa cancellation can be revoked if you appeal with the Administrative Appeals Tribunal or the Minister for Immigration. If the tribunal revokes your visa cancellation, you will get it back.
However, if the Minister for Immigration personally cancels your visa, you may not be able to appeal the decision with AAT. The Minister can cancel your visa personally or via their delegates. The tribunal has no jurisdiction to overturn the Minister's decision.
The Minister can cancel your visa in subsections 501(1) and 501(2) if:
· He/she reasonably suspects that you have not passed the character test
· You have not satisfied the Minister that you have the character test
· He/she is convinced that the cancellation is in the national interest
Loughton York Lawyers is available to discuss your options following the cancellation or Notice of Intention to Consider Cancellation. Let's help you get your visa back.