Wickham Lawyers is able to assist clients who have had their visas cancelled or refused if the Minister or delegate of the Minister is not satisfied that the visa applicant passes the character test.
Under Section 501(3A) of the Migration Act 1958 (Cth), the Minister or the delegate must cancel a visa that has been granted if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) the person has a substantial criminal record (i.e. sentenced to a term of 12 months imprisonment or more); or
(ii) the person is convicted of one or more sexually based offences involving a child; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, State or a Territory.
There is no possibility for review of this mandatory cancellation but under section 501CA of the Migration Act 1958 (Cth), there is a revocation power.
If you have had your visa cancelled under section 501 of the Act, you will receive a letter for the Department advising you that your visa has been cancelled. The letter will also inform you that you can apply to 'revoke' the cancellation decision but there are strict time limits that must be complied with. These time limits are:
28 days if a staff member from the Department handed you the letter; or
35 days if the Department posted you the visa cancellation letter.
If you do not apply before the deadline, then you will not be eligible to apply for revocation of the visa cancellation decision and you will be deported once your custodial sentence has finished.
The Department still has the power to cancel your visa on 'character grounds' and if the Department chooses to use this power, you may receive a letter called a 'Notice of Intention to Consider Cancelling your Visa'.
Even if you apply for a revocation of the decision, you still have two options available to you. These options are:
Applying to the AAT within 9 days of the Department denying your revocation request; or
However, if it was the Minister who directly made the decision, you are barred from going to the AAT and then your only option is to appeal the Minister's decision in the Federal Court of Australia, but you must have the grounds to do so.
If you are in prison or in immigration detention, we advise you to seek legal advice to know what options are available to you.