The Department of Immigration and Border Protection (DIBP) has the authority to revoke any form of visa (temporary or permanent) if you fail a “character test.” Section 501(6) of the Migration Act of 1958 defines the personality test (the Migration Act). If you fail a personality test, your visa application can also be rejected.
You won’t be successful on the personality test if:
- You have a “substantial criminal record”.
- You have an association with an individual, group or organization suspected of being involved in the offence.
- You are not of good standing in relation to your past and present offense or general conduct.
- There is a significant risk of engaging in unacceptable behaviour in the future.
What happens if my visa is cancelled?
- If your visa is revoked, you must obtain a new visa to stay in Australia.
- Except for a protection (refugee) visa or a bridging visa, you cannot apply for any other type of visa.
- You will be expelled from Australia and sent back to your home country after serving your entire prison term. This is typically the location of your birth.
- You won’t be allowed to return to Australia once you’ve been expelled.
Cancelling a Visa – Step by step process
The DHA is informed that you have a significant criminal record.
This typically occurs while you are imprisoned. Normally, DHA won’t start the revocation procedure until you’ve completed six months of jail or prison time. DHA, however, has the option to revoke your visa at any moment, whether you are incarcerated or freed.
DHA sends you Notice of Intent to consider revocation.
This notification indicates that DHA is thinking about revoking your visa. At this time, no conclusions have been reached. You will have the chance to explain to DHA why your visa shouldn’t be revoked.
Your visa may be revoked by the Minister of Immigration and Citizenship as well. This indicates that the Minister does not act on behalf of DHA but rather as an individual. The Minister will not adhere to the same procedure as set down here, and the AAT is powerless to reverse this kind of revocation. If the Minister is thinking about revoking your visa, you should seek legal counsel.
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Notice of Intention to Consider Cancellation
You will receive this notice, as well as other papers including criminal histories, from the Department of Home Affairs (DHA). Through this, they want to know why you think the results of your application should be in your favour.
DHA will want your input on the data. DHA drafts a report on its analysis. This includes any data that DHA gets from you and other sources.
The decision-maker is given the problem document.
You need to write the DHA and state your case for not having your visa revoked. The white paper will be examined by a decision-maker who will then determine whether to notify or cancel the visa.
DHA will notify you in writing of its choice. A letter cancelling your visa, or a warning letter will be sent to you.
If your visa is not cancelled, and you only receive a warning, you still might be cancelled in the future if you are convicted of other offences.
If your visa is cancelled, you can appeal to the tribunal.
If you don’t pass the temperament test, DHA does not have to revoke your visa. DHA will consider variables like the possibility that your continued presence in Australia could harm Australian society and the repercussions for you and your family should you be forced to leave.
The DHA follows the guidelines outlined in Ministerial Regulation 41 when deciding whether to cancel a visa application. We will notify you and give you a copy of this document.
It contains comprehensive instructions on what the DHA may consider while deciding whether to revoke a visa. Both “principal considerations” and “secondary considerations” must be considered by DHA (which DHA may consider).
The following are the main factors that DHA must consider:
The protection of the Australian community includes:
- The magnitude and character of the criminal offense(s)
- The potential for reoffending by you.
- Whether you were a child immigrant to Australia
- How long you were a resident of Australia before committing an offense.
- Australian obligations regarding human rights.
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