Mandatory visa cancellation
I have had many clients who have been caught by the mandatory visa cancellation provisions in the Migration Act. If you receive a notice of visa cancellation under s501(3A) of the Migration Act 1958, you must act fast if you wish to regain your visa. If you wait longer than 28 days to respond to the cancellation, in many cases you will lose your right to challenge it.
You will be caught by the mandatory visa cancellation provisions if:
You have been sentenced to death (hopefully unlikely), life imprisonment or a term of imprisonment of 12 months or more, or you have been convicted of one or more sexually based offences involving a child; and
You are currently serving a term of imprisonment for an offence.
Bear in mind that a ‘term of imprisonment’ includes a suspended term of imprisonment. This means that if you receive a suspended sentence of 12 months or more and then you are later sentenced to 6 months immediate imprisonment, you will be caught by the mandatory visa cancellation provisions. You could also be caught by the mandatory visa cancellation provisions if you breach your suspended sentence of 12 months or more and must serve any part of it in custody.
The process for appealing or challenging a visa cancellation under s501(3A) of the Migration Act 1958 is set out under s501CA of the Act. The first and most important step is to make representations about revocation of the original decision (the mandatory cancellation decision). This must be done within 28 days of the day in which you are deemed to have received the notice of visa cancellation. This is as easy as signing the ‘request for revocation’ form that will be sent to you with the notice of cancellation. You will also be sent a ‘personal circumstances form’ which will assist you in providing relevant information to the Department of Immigration.
In your representations you can make your case about why the original decision ought to be revoked. Ultimately, this is an exercise in persuasion. The decision maker (the Minister or a delegate of the Minister) must be satisfied that there is ‘another reason’ why the original decision should be revoked. In coming to this conclusion, the decision-maker must weigh the factors set out in Part C of Ministerial Direction no. 79 (technically if the Minister considers your case personally, he will not be bound by the Direction). This is where it is important to seek legal advice, a migration lawyer will be able to make representations on your behalf to the decision-maker in accordance with Direction no. 79. While it is possible to do it yourself, you run a significant risk of leaving out things which weigh in your favour or writing something which harms your case.
If you or a loved one has received a notice of cancellation, get in touch with us for an obligation free discussion.