Success at the AAT: Revocation of Visa Cancellation Under s 501(3a) of the Migration Act 1958

The case of: NQKB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4054 (8 October 2021)

Samuta McComber Lawyers represented the applicant in these proceedings, involving the Tribunal’s review of a decision by the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister). The Tribunal overturned the Minister’s refusal to revoke the cancellation of the applicant’s visa under s 501CA of the Migration Act 1958 (Cth), and substituted a cancellation decision, resulting in success for the applicant.

Under s 501CA(4) of the Migration Act, the cancellation decision may be revoked either: if the applicant passes the character test, or if there is another reason justifying revocation.  Given the applicant had been sentenced to fifteen months imprisonment, his criminal record meant that he plainly failed the character test. The applicant’s case thus hinged on the second limb under s 501CA(4): whether there was another reason why the original decision should be revoked.

To determine this, the Tribunal turned to Ministerial Direction No.90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90). Direction 90 sets out primary and secondary considerations that are relevant when considering whether there are reasons that a visa cancellation decision should be revoked, as well as how to apportion weighting to each consideration. Primary considerations are set out in Paragraph 8 of the Direction as follows:

1.       protection of the Australian community from criminal or other serious conduct;

2.       whether the conduct engaged in constituted family violence;

3.       the best interests of minor children in Australia; and

4.       expectations of the Australian community.

Secondary considerations are set out in paragraph 9 of the Direction:

1.       international non-refoulement obligations;

2.       extent of impediments if removed;

3.       impact on victims; and

4.       links to the Australian community, including:

a.       strength, nature and duration of ties to Australia; and

b.       impact on Australian business interests

Regarding protection of the Australian community as a primary consideration, the Tribunal considered the nature and seriousness of the applicant’s conduct, and what risk it might pose to the Australian community should it continue. Despite finding that the seriousness and risk would be significant, the Tribunal was swayed to ultimately find this consideration only had moderate weight, given the low chance of recidivism.

Another primary consideration is the best interests of the minor children in Australia, namely the applicant’s biological children. Evidence tendered in the proceedings show the applicant to be a dutiful parent and integral to the household. The Member considered that his deportation would have a significant effect on the children, and thus gave this consideration heavy weight in favour of a revocation decision.

Turning to secondary considerations, the Member discussed Australia’s international non-refoulement obligations at length, drawing upon information about the applicant’s country of origin from sources such as the Department of Foreign Affairs and Trade, and the UN Office for the Coordination of Humanitarian Affairs. She concluded there was a considerable risk he would experience persecution based on his ethnicity if deported. Other secondary considerations favouring a revocation decision were his links to the Australian community.

Ultimately, the Member held that it was likely the applicant would be a better citizen than before if his visa was returned to him. She thus decided to substitute the Minister’s decision, and find that the cancellation of the applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).

Back to basics series: Visa Cancellation under s501(3A) of the Migration Act

Blogged by Jennifer Samuta
and Rachel Tomassen

Picture this. You’ve just received a letter from the Department of Home Affairs, saying that your visa has been cancelled. If that seems nightmarish and something you cannot even imagine, here’s an illustration:

Obviously, you’re scared..stressed….confused – who knows what will happen next? Can you fight this? Is there any hope? Will you be deported? How long do you have? What is the process? Your mind, no doubt, will be a whirlwind of questions and your heart a sea of emotions!

If you’ve been given a Notice of visa cancellation under s 501(3A) of the Migration Act 1958, what does it mean?

It means that your visa has been subject to mandatory cancellation– your visa has been automatically cancelled. The Minister for Immigration can, and must, cancel your visa under s 501(3A) of the Migration Act when you meet boththe following criteria:

1.     You fail to pass the “character test”. This means that you either:

a.     Have a “substantial criminal record”; or

b.     Have been convicted of child sex offences; and

2.     You are currently incarcerated on a full-time basis.

You can have a “substantial criminal record” if you have been sentenced to a term of imprisonment of 12 months or more. This might also include if you have been sentenced to multiple terms of imprisonment which add up to 12 months.

Then, as soon as you go to jail, you are incarcerated on a full-time basis. Your visa is automatically cancelled under s 501(3A) and there is no certainty on which day of your sentence- you must just know and be prepared to receive that letter (see pic above).

So your visa has been cancelled under s 501(3A). Now what?

There is hope - something can be done!

If your visa has been cancelled under s 501(3A), it is possible to apply to the Department and ask them to revoke the mandatory cancellation of your visa. This is called a request for revocation and is a process which basically asks the Minister to reconsider the cancellation (note: only certain considerations can be made - see our post on Ministerial Direction 79 here). If you are successful, your visa will be reinstated.

But how do you make a request for revocation?

STEP 1: Act quickly.

You only have 28 days to send the Department your request for revocation. If you have no idea what you are doing, the sooner you can get a lawyer the better. 

If the Department receives your request afterthe 28-day time period, they will not consider your request for revocation.

There is no fee to lodge this request for revocation.

You can send the request to the Department in three ways:

-      Via email at 501Revocations@homeaffairs.gov.au;

-      Via fax at 03 9235 3626; or

-      Via post at the address below.

National Character Consideration Centre
Department of Home Affairs
GPO Box 2241
Melbourne, VIC 3001

(Please take into account how long your mail may take to get to the Department when you are thinking about when to send the request!)

STEP 2: Fill out the Revocation Request Form.

You can find this form enclosed with the notice of visa cancellation that was sent to you by the Department. Fill it out and include it in the package you send to the Department.

STEP 3: Fill out the Personal Circumstances Form.

This form is also enclosed with the notice of visa cancellation sent to you by the Department. Fill it out as much as you can, even if you intend to get a lawyer to help you. Your lawyer is going to need as much information as they can get!

When you are requesting a revocation of your mandatory visa cancellation, you are essentially trying to tell the Department:

“I know that I have failed the character test, but there is another good reason why I should not be deported!”

What is another good reason? Well, it’s more like many good reasons. These good reasons are outlined in Ministerial Direction 79, which is a list of factors the Department has to take into account when making their decision. A great overview of Direction 79 can be found here.

Often, we have found that our clients’ best arguments that they have a good reason to stay have included:

-      Having minor children who rely upon them for support, and whose relationship with you would be damaged if you were deported, or their lives would be significantly disrupted if they were permanently separated from you;

-      Feeling genuinely remorseful about your conduct, having undertaken a lot of serious rehabilitation efforts and courses, and having a low chance of re-offending - find yourself a qualified psychologist who can assess you and provide a written report about your risk; 

-      If you have lived in Australia for a long time;

-      If it would be very difficult for you to return to your country of citizenship; and

-      If you have made other positive contributions to your family and your community.

These are only some of the reasons, but this should give you a taste of what kind of information you need to tell the Department, or your lawyer when they are helping you draft a Statement to include in your request for revocation.

Essentially, you’re trying to convince the Department that you should still remain in Australia because you will be responsible and make a positive contribution to Australian society. Your very best reasons why you should stay in Australia need to go in your request for revocation.

Often, you will need a lot of information to evidence this claim. Try to get as much information as you can from your friends and family, as well as letters of support. This might take a lot of time, so you’ll need to act quickly.

Understand the Consequences

If you thought the information above was scary enough, the consequences of a visa cancellation is even scarier. As your visa has been cancelled, you no longer hold a substantive visa, and you are considered an unlawful non-citizen. If the visa cancellation decision is not revoked before you are released from prison, you will be detained in immigration detention following your release.    

There are four major consequences of a visa cancellation under s 501(3A), being:

1.    you are prohibited from applying for other visas while you remain in Australia (there are exceptions for applications for protection and bridging visas in some circumstances);

2.    any other visa applications made by you are deemed to be refused and all other visas held by you are deemed to be cancelled (however, if the visa cancellation decision is revoked, any visa applications or cancelled visas will be reinstated);

3.    you will be permanently excluded from entering Australia; and

4.    a record will be attached to your immigration file, which may cause difficulties with any international travel in the future (as many countries will not admit people who have been removed from another country).

Take home message: Visa cancellation under s 501(3A) of the Migration Act isn’t the end of the road. Submit your request for revocation to the Department within 28 days, and give yourself the best chance you can to see the light at the end of the tunnel. And most importantly, know that it is possible to have a visa cancellation decision revoked. The graph below represents the number of finalised revocation requests from 1 July 2018 to 30 June  2019. There is hope!

A ‘Revoked’ decision results in a visa being reinstated, whereas a ‘Not Revoked’ outcome upholds the cancellation decision. Source: Department of Home Affairs website.

For more information, feel free to contact us for a chat with one of our understanding, experienced and compassionate lawyers.

Disclaimer: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you may have.

What is Ministerial Direction 79?

Good question! And if you are living in Australia and have been sentenced to a term of imprisonment of 12 months or more, you really need to cast your eyes over or get your hands on a copy of the Ministerial Direction 79. Interestingly, if you do a general sweep of the internet (ahhh, Google!), you will have difficulty finding a copy of the Direction. This is bizarre given that the effects of the Ministerial Direction 79 are significant and widespread (check out the table of relevant stats below!).

In any case, we’ve made a copy of the Ministerial Direction 79 available here.

TABLE 1: VISA DECISIONS UNDER SECTION 501

Source: Department of Home Affairs,Submission to Joint Standing Committee on Migration, Inquiry into review processes associated with visa cancellations made on criminal grounds, [Submission no. 29], 11 May 2018, p. 4.

Essentially, when a delegate is considering cancelling or refusing a visa under the character provisions outlined at s501 of the Migration Act, that decision maker must consider Ministerial Direction No. 79 which sets out binding considerations for decision-makers in exercising this discretion. Interestingly, the Minister for Immigration is not bound by these considerations.

Direction No. 79 commenced on 28 February 2019 and replaced the previous Direction No. 65. While the new Direction is not significantly different to the former one, it now provides that in considering the nature and seriousness of the non-citizen’s criminal offending and other serious conduct, decision-makers must have regard to (amongst other matters) ‘the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’.

The Direction emphasises the principle of protecting the Australian community, and requires decision-makers to give primary consideration to:

• the nature and seriousness of the non-citizen’s conduct to date

• the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

• whether the cancellation or refusal is in the best interests of any minor children in Australia affected by the decision

• expectations of the Australian community.

Secondary considerations that must be taken into account, when relevant, include:

• whether international non-refoulement obligations arise;

• the strength, nature and duration of the person’s ties to Australia;

• the impact of the cancellation or refusal on Australian business interests and/or on members of the Australian community (such as victims of the non-citizen’s criminal behaviour); and

• the extent of any impediments the non-citizen may face if removed.

The considerations are complex and different levels of weight will be attributed to each of the considerations, depending on the individual’s circumstances. It’s a delicate balancing act, and because of that we say that It is important that you seek legal advice so that your best case is put before the decision-maker.

Frequently Asked Questions - Visa Cancellation under the Migration Act 1958

Given that our firm fields a number of enquiries on a daily basis in relation to visa cancellations under the Migration Act 1958, it made complete sense that we should blog about FAQ’s! I mean, how have we not done so sooner?! Note: this blog will be updated regularly with additional FAQ’s so be sure to subscribe if you want to keep updated.

How long do I have to apply for review or appeal after receiving a Notice of Cancellation?

If your visa has been automatically cancelled under s 501(3A), you must request that the Minister for Home Affairs revoke (set aside) that cancellation within 28 days of receiving the notice. If the Department does not receive your request for revocation within 28 days there is nothingyou can do to set aside the decision. 

If your visa has been cancelled unders 116(1)(e)you must apply to the Administrative Appeals Tribunal for review of the decision (and pay at least half of the AAT’s usual filing fee - $893.50) within seven working days of the date you are taken to have received the Notice of Cancellation (the date you are taken to have received the Notice may be earlier or later than when you actually received the notice). The AAT has no power to extend the time for lodging an application for review, even if it really, really wants to (i.e. if you moved to Australia when you were 10 days old and your adoptive parents are Australian citizens). 

Does it cost money to request revocation or apply for review?

If your visa has been automatically cancelled under s 501(3A)you do not have to pay any fee in order to request revocation of an automatic cancellation.

If your visa has been cancelled under s 116(1)(e)you must pay the Administrative Appeals Tribunal’s filing fee, which is usually $1,787.00. If you apply for a fee reduction on financial hardship grounds the fee may be reduced by 50 per cent to $893.50. If you apply for financial hardship you must pay at least $893.50 to the Tribunal within the 7 working day period you have to apply for review or the Tribunal will not be accept your application for review. 

Will I ever be able to return to Australia?

If your visa is automatically cancelled under s 501(3A)and that cancellation is not revoked you will be permanently excluded from Australia. This is because you are unable to apply for almost any other visa while you remain in Australia and, once you are removed, it is a criterion of every visa you could apply for outside of Australia that you have not previously had a visa cancelled under s 501. 

If your visa is cancelled under s 116(1)(e) and that decision is not overturned by the AATyou will be unable to apply for any temporary visa for 3 years after your cancellation. If you are removed from Australia after your visa is cancelled (which is likely), you will be unable to apply for most other visas until 12 months after your removal. If you are a New Zealand citizen and are removed after your visa is cancelled, you will never be eligible for a Special Category (subclass 444) visa again, even if the AAT sets aside the cancellation decision after you are removed. That means you will have to apply for and be granted another visa before you are allowed to re-enter Australia.

What are the chances of getting my visa back? Is it even worth trying?

Your prospects of successfully requesting revocation or applying for review will depend on your specific circumstances. However, don’t let media reports fool you, people do get their visas back!

Of all people who request revocation of an automatic visa cancellation under s 501(3A), about half get their visa back. You’ll never hear about this because these decisions aren’t published publicly. 

For those cancelled under s 116(1)(e), we have had multiple clients who have had their visas reinstated by the AAT. You can read reviews from such clients on our Testimonials page here , Google Business or Facebook. 

Note: The contents do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as such. You should seek legal advice or other professional advice in relation to any particular matters you may have.

The stuff of nightmares: s116(1)(g) of the Migration Act 1958

Know what’s' scary? Section 116(1)(g) of the Migration Act 1958. The Migration Act 1958 is a labyrinth, and this provision has the potential for a nightmare ending.

Section 116(1)(g) of the Migration Act 1958 with reference to Regulation 2.43(1)(oa) allows the Minister to cancel a person’s visa if the Minister is satisfied that the holder has been convicted of an offence against a law of the Commonwealth, a State or Territory (regardless of the penalty imposed (if any)).

………..

………..let that sink in for a moment………..

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What this means is that under section 116(1)(g) of the Migration Act 1958 and Regulation 2.43(1)(oa) the Minister can cancel a person’s visa if that person has been convicted of an offence against a law of the Commonwealth, a State or Territory. This is regardless of the penalty imposed, that is a term of imprisonment does not need to be imposed, nor a fine or court order (e.g. community service).

Note: this cancellation provision does not apply to all visas, only temporary visas (with the exception of the following visas: Subclass 050 (Bridging (General)) visa, a Subclass 051 (Bridging (Protection Visa Applicant)) visa or a Subclass 444 (Special Category) visa)). Although, this does not necessarily keep them safe as those visa holders could alternatively be cancelled under s116(1)(e) of the Migration Act - read more about this here and here.

This is an extremely low threshold and most convictions form sufficient grounds for the Minister to make a decision to cancel a visa. Based on our experience where there are grounds for visa cancellation, the Department will possibly (most probably) cancel that person’s visa. Although, it is possible to avoid visa cancellation provided a strong case is put forward and the decision maker is convinced that there are significant reasons for the visa not to be cancelled. The Department’s position is strict and most types of criminal offending is viewed extremely seriously by the Departmet.

If the Department cancels a visa that person will be deemed to be an “unlawful citizen” and as such be liable for immigration detention under s189 of the Migration Act 1958. There is an appeal avenue to the Administrative Appeals Tribunal (AAT) for review of that decision, but applications must be made within 7 working days and the filing fee of $1787 must be paid within those 7 working days.

Samuta McComber Lawyers is experienced in drafting responses to section 116 cancellation notices. We have had successes at both the initial response stage and appeals to the AAT. We would recommend engaging a lawyer for the initial response so that your response puts you in the best legal position to avoid visa cancellation and immigration detention.

Disclaimer: This does not constitute Immigration advice. Always seek advice legal advice from a registered migration agent and lawyer. Migration Law is constantly changing. This information is accurate only at the time of publication.