Tribunal review of visa cancellations
If your visa has been cancelled under s 501 of the Migration Act 1958 (Cth) then, unless it was cancelled by the Minister personally, you have a right to apply for merits review to the Administrative Appeals Tribunal (AAT). This process is complicated and fast; you need to act quickly if you want to give yourself the best chance of success. This is one of the areas of our greatest expertise, please get in contact if you would like to have an obligation free discussion.
The first thing you need to know about merits review of 501 decisions in the AAT is that there are a series of strict and inflexible timeframes to which you must adhere. First, you must apply to the AAT for review within 9 days after the day on which your visa was cancelled. If you fail to do this, the AAT will not have jurisdiction to review the decision and there is very little if anything that anyone can do for you. Second, the whole process must be completed within 84 days (12 weeks) after the day on which your visa was cancelled. This means, in practice, that you have about 2 months to prepare your case and that, no matter what happens, you cannot get an adjournment for any significant period of time. Third, any document you want to rely upon at the hearing has to be given to the Minister’s lawyers 2 clear days before the hearing. If the hearing was on Thursday, 2 clear days would be the Monday before. Fourth, any witnesses that you want to give oral evidence for you at the hearing must write a statement containing what they intend to say and that statement must be given to the Minister’s lawyers 2 clear days before the hearing. Anything which is not written in their statement cannot be said by them at the hearing and if they do not provide a statement at all they cannot give evidence at the hearing.
The second thing to know about merits review of 501 decisions in the AAT is that the AAT will not take your evidence at face value. For most significant facts you need corroborating evidence. For instance, your risk of reoffending is usually a very important matter for the AAT to consider in 501 matters. If you say to the AAT that you will never reoffend, the AAT is very very unlikely to just take your word for it. You need to back up your claims about your risk of reoffending with evidence, like, for instance, a psychological report prepared by an independent psychologist or reports about your progress in rehabilitation programs.
The third and final thing covered by this article to know about merits review of 501 decisions in the AAT is that the AAT cannot usually come to a different conclusion than the sentencing judge about your offending. It does not matter if you have been wrongfully convicted or sentenced on the basis of facts that are not true, the AAT cannot and will not disagree with the essential facts behind your conviction or sentence. If you want to challenge the essential facts behind your conviction or sentence, then you need to lodge an appeal with the Supreme Court. Otherwise, you need to accept that those facts are the basis on which the AAT will assess your application.
If you are seeking review in the Administrative Appeals Tribunal of a decision to cancel your visa under s 501 of the Migration Act 1958 (Cth), please contact us for an obligation free discussion.