Requesting an extension of time to appeal to the AAT - is this possible?

Earlier last month we provided an initial consultation to a couple who had been refused their applications for citizenship (based on identity). As their refusal letters said they had 28 days to appeal the refusal decision to the Administrative Appeals Tribunal (AAT) they sought our advice and assistance with any possible next steps as it appeared they had missed an important deadline.

During the initial consultation and upon review of their documents and consideration of the circumstances that led to them missing the AAT deadline, we advised them that they were actually able to apply for an extension of time to make an application to the AAT. They engaged our services to apply for an extension of time, and ultimately, this was consented to by the Minister’s solicitors. We are pleased to say that they have current matters before the AAT and we are representing them in their appeal applications. Had they not booked in for that initial consultation, it is likely that they would have been none the wiser of their rights to appeal.

In saying that, an extension of time to appeal is not available for all types of applications to the AAT, and even when it is an option, it isn’t always guaranteed. Keep reading for further information and clarification….

Appealing to the AAT

When the government makes a decision, for example, to refuse to grant a visa or to cancel a visa, the decision can usually be appealed to the Administrative Appeals Tribunal (AAT). What this means is that the AAT is allowed to remake the decision. However, the AAT is only allowed to remake the decision if an application is made within a certain time frame.  Most of the time, if an application for review is made to the AAT outside the time frame, the AAT is not legally allowed to remake the decision. This limits your options to change the government’s decision.

However, there are some circumstances in which the AAT can extend the time limit. It varies according to the type of immigration decision.

This table summarizes what your options are in relation to extending time deadlines. Generally, it is very important to lodge your applications within the required time frames. There is no guarantee that an application for an extension will be granted.

Migration Decision

If the Minister’s decision is a ‘migration’ decision, the time limits are very strict. A ‘migration’ decision is a decision to refuse or cancel a visa, a refusal to approve a nomination of an occupation, activity or position, a decision to bar, refuse to approve or cancel the approval of a sponsor, or a decision relating to a security.

The time limit to apply to the AAT differs on the type of decision, and whether you are in immigration detention. In the decision letter, which you should have received, the time limit for review is explicitly stated.

The AAT has no power to extend the time limit here. The time limit starts to run when you are taken to have received notice of the decision (generally when the letter was delivered). If the time limit expires, the AAT has no legal ability to review the decision.

Refugee Decisions

If the Minister’s decision relates to refugees, the time limits for review are also very strict. Refugee matters include decisions to refuse or cancel protection visas, decisions that a protection finding would no longer be made about a person,

The time limits for these decisions are very tight. If you are not in immigration detention, the deadline is 28 days. If you are in immigration detention, the time limit is 7 working days. The clock starts to run on the day you are taken to have received notice of the decision, if you are not in immigration detention. If you are in immigration detention, the clock start to run on the first working day you are taken to have received notice of the decision (so if you receive the decision on a Saturday, the clock starts to run on the Monday).

If the time limit expires, there is nothing the AAT can do. They have no power to extend the time limit.

Character-Related Decisions

Sometimes, visas are cancelled because of ‘character concerns.’ That means that the Minister has decided that you don’t pass the ‘character test.’ This allows the Minister to refuse or cancel any type of visa under s 501 (for more information on s501, see our upcoming s501 Information Kit). The Minister might refuse to undo a mandatory cancellation on the basis that you fail the character test. The Minister might also refuse a protection visa on character grounds. They might also cancel a business visa under s134. All of these types of decisions are reviewable by the AAT.

If you are in Australia, and the Minister has made a decision to refuse or cancel your visa under s501, or has made a decision to not revoke a mandatory cancellation under s501CA, there is a very tight time limit for review. The clock begins to run the day after you receive notice of the decision, and is 9 days long. The AAT has no power to extend this time limit – if the application for review is not lodged within this time, then there is no route for the AAT to appeal the matter.

Things are slightly more lenient if you are not in Australia. If you are outside Australia when the Minister makes a decision to refuse or cancel your visa under s501, or has made a decision to not revoke a mandatory cancellation under s501CA, then the time limit is 28 days after receiving notification of the decision. If the time limit expires, you can apply to have it extended!

For decisions to refuse a protection visa on character grounds other than s501, or for decisions to cancel a business visa under s134, the time limit is 28 days after receiving notification of the decision. Once again, if the time limit expires, you can apply to have it extended.

Citizenship Decisions

If the government has made a decision to refuse to approve a person becoming an Australian citizen, then this is usually reviewable by the AAT. It depends on the specific section of the Australian Citizenship Act 2007 that the government relied upon to refuse the citizenship application. Your decision letter should tell you whether you can apply to the AAT.

The AAT can review your decision if you apply within 28 days after you receive the decision from the Department of Home Affairs. However, if you miss the deadline, you can apply to the AAT to extend the time limit.

Writing to request an extension of time

When requesting an extension of the time limit, the reasons for why the application is late must be included. You can make the request for the extension in several ways. You can make the request when you make your application for review online, or you can fill in an ‘application for extension of time’ form when you send your ‘application for review of decision’ form in on paper, or you can write an email or letter.

The AAT then sends the application for an extension of time to the relevant government department, who can either agree to it or choose to contest it. If they choose to agree to it, then generally the application is granted. If they choose to contest the application, the AAT holds a hearing before determining whether to approve the application for an extension of time.

Conclusion

If you have missed a deadline to apply for review to the AAT, and after reading this blog feel that you may be able to request an extension of time, we would encourage you to seek legal advice as you may still have review rights despite missing the deadline set out in your refusal or cancellation letter.

 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. Information is correct as at 15.11.2021 and subject to change without notice.

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.

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.