Section 501 of the Migration Act 1958 (Cth) prescribes the circumstances when a visa must be cancelled or refused on character grounds. The mandatory visa cancellation provisions were introduced under section 501(3A) by the Migration Amendment (Character and general Visa Cancellation) Act 2014. Between 2013-14 and 2020-21 financial years, the number of visa cancellations on character grounds significantly increased from 74 in 2013-14 to 1278 in 2016-17 to 946 in 2020-21. This significant increase has been amongst other things was due to the introduction of the mandatory cancellation provisions.
When do the mandatory cancellation trigger
Mandatory visa cancellation provisions are triggered under the following four circumstances:
- When a person has been sentenced to death or
- When a person has been sentenced to life imprisonment or
- When a person has been sentenced to a term of imprisonment of 12 months or more or
- When a person has been found guilty of a sexual offence involving a child
To trigger mandatory cancellation a person has to be serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the Commonwealth.
Procedure for Mandatory Cancellation
When a person meets the mandatory cancellation provisions as mentioned above, the authorities will inform the Department of the person’s substantial criminal record. The Department will then send the person a letter called the ‘Notice of Cancellation’ cancelling their visa. This letter will also mention that the person has 28 days to apply to the Department to revoke the cancellation decision. In case the Department does agrees with the applicant’s contention the cancellation will stand and the person has review rights at the AAT.
Review of Cancellation decision
If the cancellation is not revoked by the Department, the applicant will have review rights at the AAT. It is important to remember that it is the General Division and NOT the MR Division of the AAT which deals with the visa cancellation hearings. In case the decision has been personally made by the Minister, the AAT has no jurisdiction and the matter has to be heard in court.
Nevett Ford Lawyers can assist you with your representation in applying for revoking the cancellation decision as also at the AAT and the Federal Courts.
If you have any questions about any type of visas please feel free to ccontact our migration lawyers.