Australia’s visa system, while designed to protect national interest and public safety, can often feel unforgiving – especially when it comes to the mandatory cancellation powers.
Under section 501(3A) of the Migration Act 1958, any visa holder who commits a crime and receives a term of imprisonment for 12 months or more (even if the sentence is suspended or two terms add up to that time) will be subject to mandatory cancellation of their visa.
The cancellation is automatic – the Minister or a delegate must cancel the visa once the criteria are met. This means that considerations that could impact the visa holder or their family are not reviewed at that time.
A visa holder may have the opportunity to put a case on before a Department of Home Affairs (DOHA) delegate and argue why the cancellation should not occur upon receiving a Notice of Cancellation. Once a decision has been made and the visa is cancelled, the decision can be challenged before the Administration Review Tribunal (ART).
Every appeal to the Administrative Review Tribunal is different and individual to a visa holder’s individual circumstances.
A decision maker from the ART must review the Primary Considerations under the current Ministerial Direction (currently 110) and apply the relevant facts and determine whether the DOHA delegate made the correct decision.
Primary considerations include:
- Protection of the Australian community;
- Whether the conduct engaged in constituted family violence;
- the strength, nature and duration of ties to Australia;
- The best interests of minor children in Australia; and
- Expectations of the Australian community.
Other considerations include:
- legal consequences of the decision;
- extent of impediments if removed; and
- impact on Australian business interests
The ART is not bound by the original delegate’s findings – it conducts a de novo (fresh) merits review, reassessing all facts and law.
Applicants can present new evidence such as psychological reports, rehabilitation progress, family impact statements, and risk assessments showing low re-offending likelihood.
Unlike other migration matters before the ART, cancellation matters are less inquisitorial and function more similarly to trials where witnesses are called and evidence is presented. Good advocacy is essential to help achieve positive outcomes.
Visa cancellation appeals are very complex and are required to take place within an 84-day window, which makes planning and good legal expertise important for these matters. Because of the strict deadlines and detention pressures, delays can be fatal to a successful review.
Our team is experienced with ART appeals. An ART appeal provides a crucial opportunity to tell the full story – not just of a person’s past, but of their rehabilitation, family life, and future prospects.
We can assist if you need help before the ART. Contact our team today.
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