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.

The verdict is in: soft (skills) is best!

Visa cancellations and visa refusals under the Migration Act 1958 are no soft topic.

soft skills

noun

1. personal attributes that enable someone to interact effectively and harmoniously with other people.

If there’s a set of skills most lawyers lack, it’s soft skills.

That is why, soft skills are what distinguish Samuta McComber Lawyers from the rest. Our lawyers’ soft skills complement their hard-earned legal expertise and analytical intelligence, so that the truth of our clients stories can be better told to the decision makers who ultimately hold our clients’ lives in their hands.

Needless to say, when you are facing a possible visa cancellation under s501 of the Migration Act 1958 or have received a non-revocation outcome by a delegate of the Minister of Home Affairs (and you intend on appealing that decision to the Administrative Appeals Tribunal ( AAT ) ), it is in your best interests to engage lawyers whose expertise is complemented by excellent soft skills. The following are the top 3 reasons why:

1. the character-related provisions (s116 and s501) of the Migration Act 1958 is a complex area of law - not all lawyers have sound knowledge or experience in this niche area of immigration law;

2. the ramifications for a visa refusal or visa cancellation under s501 is permanent exclusion from returning to Australia - literally, a life long ban, with no exceptions whatsoever; and

3. when appearing at the AAT in relation to a s501 visa cancellation, the lawyers for the Minister of Home Affairs will play an active role in the proceedings (they will be at the final hearing to make submissions, examine and cross-examine the Applicant and the evidence relied on). The Minister for Home Affairs is of course represented by the Australian Government Solicitor or a top-tier law firm (currently Sparke Helmore Lawyers or Clayton Utz Lawyers).

Soft skills are our point of difference.

The following list are our top 7 sought after soft skills for our legal team:

#1: A genuine desire to help other people

#2: High personal integrity

#3: Humility and sensitivity

#4: Simplicity

#5: Empathetic listeners

#6: Confidence and persistence

#7: Discipline, dependability, and loyalty

Lets be real, representing clients whose visas have been refused or cancelled under s116 and s501 of the Migration Act 1958 is a tough gig! Professionally, the legislation is complex, yet specific, with strict deadlines and specific considerations. Personally, the nature of the work is highly emotive and demanding, with daily exposure to clients’ family units being torn apart by the threat of (or actual) deportation and individuals being removed from the only home (country) they’ve ever known.

The reality of the legal consequences for our clients and their loved ones drive our personal commitment to provide a level of representation:

• that is driven by a passion to selflessly assist others, instead of being focussed on the money;

• that demonstrates a deep commitment to honesty, loyalty, candor, transparency, and respect for others;

• where we put ourselves in others’ shoes, seeing our clients’ situations, attitudes, and needs through their eyes;

• that strives to be down-to-earth, communicating in simple language and avoid using “legalese”, recognising that our clients have unique styles, interests, and needs, having come from different walks of life;

• that is confident and unshakable, refined only by respect and efficiency.

In our view, soft skills allows us to make better submissions on behalf of our clients, and we understand the knowledge gained through our deeper relationship with our client adds to our responsibility as their advocate as we observe and interpret our client’s story to the decision maker, whether it be the delegate of the Minister for Home Affairs or Member of the AAT .

After all, every one has a story to tell: their lives being more than the sum of their offences (character).