Any type of visa (permanent or temporary) may be cancelled by Australian Home Affairs 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 Home Affairs may cancel your visa.
When calculating a “period of imprisonment”, Home Affairs 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 on character grounds?
- 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
|Step 1 – Home Affairs is notified that you have a substantial criminal record. This usually happens while you are in prison. Home Affairs will generally not start the cancellation process until the last six months of your sentence. However, Home Affairs can consider cancelling your visa at any time either while you are in prison or after you have been released.|
|Step 2 – Home Affairs sends you a Notice of Intention to Consider Cancellation. This Notice means Home Affairs is considering cancelling your visa. No final decision has been made at this stage. You will be given a chance to tell Home Affairs why your visa should not be cancelled. The Minister can also cancel your visa. This means the Minister makes the decision personally and not an officer of Home Affairs. The Minister will not follow the same process described in this kit and there is no appeal to the AAT for this type of cancellation. You should get legal advice if the Minister is considering cancelling your visa.|
|Step 3 – Home Affairs 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.|
My visa has been cancelled on character grounds – what can I do?
If your visa has been cancelled on character grounds by Home Affairs, you can apply for a review of the decision at the AAT. There are very strict time limits. You must apply for a review within 9 days.
The steps you will need to take are:
|1. Complete an Application for Review of Decision Form. You may do it online or you can ask the AAT to send you this form. You can send it to the AAT by email, post or fax or deliver personally.|
|2. Prepare your documents. It is best to send with your application to the AAT a copy of the Notice of Visa Cancellation; and all of the other documents that Home Affairs 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. If you do not pay the fee the application to the AAT will not be valid.|
|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.|
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.
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 2019/1234. 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 Home Affairs 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. Home Affairs will be represented by a lawyer at the AAT. You should get the contact details of Home Affairs 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 Home Affairs.
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 DIAC when you responded to the Notice to Consider Cancellation of your visa. You might have prepared a statement at the Home Affairs stage, so there is no need to do another statement.
You must give all your evidence to the AAT and copies to Home Affairs. 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 Home Affairs 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 DIAC 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 Home Affairs 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, Home Affairs 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.