Refusal or Cancellation of Visas of Character Grounds

our assessment advice when your visa is cancelled or refused.
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Refusal or Cancellation of Visas of Character Grounds

Under section 501 of the Migration Act (‘the Act’), a visa can be refused or cancelled on character grounds. This happens when a visa applicant or a visa holder fails the character test for one of the reasons in section 501(6) of the Act. Visa cancellation will be automatic if a visa holder is sentenced to a term of imprisonment of 12 months or more, or several terms of imprisonment which add up to a total of 12 months or more, and is actually imprisoned. Decisions to refuse or cancel a visa are made by the Minister for Immigration and Border Protection (‘the Minister’) or one of his delegates.

If you receive a notice of intent to cancel or refuse your visa, call us immediately 08 6364 3782; or email a copy of your notice and your best contact number to: info@firstchoicemigration.com.au

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What Happens Next?

The first stage of the process involves writing submissions to the Department of Immigration and Border Protection (‘the Department’).

There are 2 main ways in which a visa is refused or cancelled:

  1. The visa holder is sent a Notice of Intention to Consider Cancellation or the visa applicant is sent a Notice of Intention to Consider Refusal (both will be referred to as ‘a Notice’); or
  2. The visa holder is notified that his or her visa has been cancelled under the automatic cancellation power in s 501(3A) of the Act.

In the first case, the visa holder or the visa applicant must respond to the Notice in the prescribed time, usually 28 days. The decision on whether to cancel or refuse a visa will be guided by the instructions contained in Ministerial Direction 65.

In the second case, the visa holder must apply for revocation of the cancellation decision. Again, they usually have 28 days to respond and the decision on whether to revoke the cancellation of the visa will be guided by the instructions in Ministerial Direction 65.

In both cases, this is where a visa holder or visa applicant has the best chance of a successful outcome. It is also the cheapest stage at which to get migration or legal assistance, the cost goes up significantly if a visa holder or visa applicant has to apply for a review of a refusal or cancellation decision to the Administrative Appeals Tribunal or Federal Court.

We offer highly competitive rates for assistance with writing submissions to the Department. We handle the entire process for you in consultation with a specialist legal practitioner. In this way, we can maximise your chances of success, provide the best service available and keep our costs to a minimum.

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Appealing a decision to refuse or cancel your visa

If a visa holder or visa applicant is unsuccessful during the first stage of the process, the second stage of the process involves applying to the Administrative Appeals Tribunal (‘AAT’) for review of the Department’s decision. Please note, if the Minister for Immigration and Border Protection makes the decision personally this appeal option is not available. The entire AAT process must be completed within 84 days, otherwise, the cancellation or refusal decision stands – no extensions of time are possible for any reason.

An application to the Tribunal for review of the decision to refuse or cancel a visa must be lodged within 9 days of notification of that decision. Once the Tribunal receives a valid application, it will send the applicant a notice detailing a time and date for a directions hearing and a final hearing.

At the directions hearing, deadlines are set by the Tribunal for the lodgement of certain documents. These include all the evidence the applicant intends to rely on, witness lists and a statement of facts, issues and contentions. The statement of facts, issues and contentions is essentially the applicant’s case, it contains all the arguments for why the cancellation or refusal decision should be overturned.

The final hearing is before a Tribunal Member and is in many respects like a court case. It will be a contested hearing; the Minister will have a lawyer present. The hearing will proceed as follows:

  1. The applicant gives an opening address;
  2. The applicant calls their witnesses to give evidence, the Minister’s lawyer can cross-examine them and the Tribunal Member may ask them questions;
  3. The Minister’s lawyer gives their opening address and calls their witnesses;
  4. The applicant gives a closing address; and
  5. The Minister’s lawyer gives a closing address.

After the hearing, the Tribunal Member decides the application. This does not take long, usually a week or so, as the Tribunal Member is also bound by the 84-day limit.

This stage of the process is, generally, the last realistic chance to have a refusal or cancellation decision overturned. It is imperative that an applicant puts their best case forward. After this stage, the only available option is applying to the Federal Court for judicial review which disregards the merits of your case and looks only at whether the AAT made a jurisdictional error.

We offer highly competitive rates for assistance with applications to the Tribunal. We handle the entire process for you, prepare your evidence, draft your statement of facts, issues and contentions, and arrange for a specialist legal practitioner to represent you at the hearing. In this way, we can maximise your chances of success, provide the best service available and keep our costs to a minimum.

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Final Appeal Option

Applying to the Federal Court for judicial review of the AAT’s decision is the final option available. The Federal Court will examine the AAT’s decision and the material which was before it and decide whether its decision was affected by an error of law called a jurisdictional error. This option requires work completed by specialist legal practitioners, we cannot represent you. We can, however, refer you on to specialists in the area.

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Please call 08 6364 3792 to book a face to face appointment, or email info@firstchoicemigration.com.au to book a Skype consultation.