visa cancellation

MANDATORY CHARACTER CANCELLATION HERE TO STAY

If you have been following our blog posts, you will recall that we have previously written about the "mandatory cancellation power" introduced into the Migration Act in December 2014.  Specifically, section 501(3A) states that the Minister must cancel a person's visa if they fail the character test.

The High Court recently heard legal arguments to the effect that the introduction of s 501(3A) was unconstitutional because (among other arguments) it was punitive in nature and purported to confer judicial power on the Minister.  The case was brought by Mr Falzon, who was a 61 year old Maltese citizen who had lived in Australia since the age of 3.  His visa was mandatorily cancelled because he had been convicted of trafficking a large amount of cannabis and received a lengthy term of imprisonment as a result. 

If successful, Mr Falzon's High Court application would mean that hundreds of visas had been unlawfully cancelled over the last three years.  However, on 7 February 2018 the High Court delivered its judgement in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 and unanimously concluded that s 501(3A) was here to stay.

In reaching its decision, the High Court made the following observations:

➤ "the power to remove or deport [non-citizens] from a country is executive in nature and it is non-punitive"

➤ "deportation may be burdensome and severe for a non-citizen [...] but s 501(3A) [...] does not increase the punishment for the crime or crimes of which the non-citizen has been convicted or found guilty"

➤ "a person's nationality is not changed by length of residence or an intention permanently to remain in a country of which he or she is not a national"

➤ "as a sovereign nation, Australia has the sole right to decide which non-citizens shall be permitted to enter and remain in this country"

➤ "whilst a [non-citizen] present in this country enjoys the protection of our law, his or her status, rights and immunities under the law differ from those of an Australian citizen in a number of important respects. Relevantly, the most important difference lies in the vulnerability [...] of a [non-citizen] to exclusion or deportation."

If your visa is cancelled under section 501(3A) we suggest that you contact us urgently to discuss.  There is no right of appeal but you can have the decision overturned, if you lodge a revocation application within 28 days.  Putt Legal specialises in "revocation submissions" to the National Character Consideration Centre. 

Have you overstayed your visa? Advice if you become unlawful

Those who are not Australian citizens must have a visa to live lawfully in Australia. However, circumstances can arise where a non-citizen may find themselves in Australia without a visa.

Temporary visas, like visitor visas, student visas and the subclass 457 visa, have an expiry date, and overstaying a temporary visa will result in a non-citizen having an unlawful status in Australia. While Permanent visas don’t have an expiry date, they do have a ‘travel facility’ date, and to leave and come back to Australia after this date requires a further visa (see http://www.puttlegal.com.au/resident-return-visas/).

It may also be that your visa is cancelled for character reasons or non-compliance.  A cancellation decision will immediately result in an unlawful status.

So, what can you do if you find yourself unlawfully in Australia? It is crucial that you speak to a specialist migration lawyer, who can assist you in taking the steps necessary to become lawful again. If you go directly to the Department of Immigration and Border Protection (DIBP), or continue to live in the community without a valid visa, you risk being taken into immigration detention, and potentially being deported.

Putt Legal can assist unlawful non-citizens to remain in Australia, and as lawyers, we are not required to disclose client information to the DIBP. All communications with a lawyer are confidential, meaning unlawful non-citizens can speak without fear of their visa status being disclosed to others.

As ruled in a Federal Court case, a solicitor for an unlawful non-citizen is not required to provide their client’s phone number to the DIBP, because of ‘legal professional privilege’. The DIBP served a notice on the solicitor requiring the mobile number of her client as he had failed to turn up for a court hearing at which it was likely he would be taken into immigration detention. However, the Federal Court ruled that the solicitor did not have to comply with the DIBP’s notice to provide the mobile number, as it was communicated to her confidentially and legal professional privilege attached to the information. See Hamdan v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1267 for the full decision.

If you find yourself unlawful, Putt Legal can provide confidential assistance in legalising your status in Australia.

Refusal or cancellation of Australian visas on character grounds

Anyone who applies for or holds an Australian visa must satisfy the ‘character test’ defined in the Migration Act (typically this is everybody in Australia except those who hold Australian citizenship status).  The immigration department can refuse or cancel any visa on the basis that the person does not pass the ‘character test’.

A person may not pass the character test for a variety of reasons set out in the Act, which include (but are not limited to) –  

  • having a “substantial criminal record”
  • being a member or associated with an organisation suspected of being involved in criminal conduct (for example, being a member of an outlaw motorcycle club)
  • being reasonably suspected of involvement in people smuggling, people trafficking, genocide, war crime, crimes against humanity and other related activities (whether or not a conviction was recorded)
  • displaying past or present criminal or general conduct which suggests they are not of good character
  • being convicted of sexually-based offences involving a child, and
  • there being a risk that the person might engage in criminal conduct.

A person has a “substantial criminal record” if they have been sentenced, among other things, to a term of imprisonment of 12 months or more. This includes being sentenced to two or more terms of imprisonment (even if served concurrently), where the total of those terms is 12 months or more.  This also includes “suspended” terms of imprisonment, so the person does not have to have actually served time in prison.

A person’s visa will be automatically cancelled if they are currently serving a full-time custodial sentence and have ever been sentenced to 12 months or more imprisonment, or have been convicted of a sexually based crime involving a child.

New Zealand citizens who have been in Australia for many years are one of the largest cohorts to be affected by these provisions.

If your visa is subject to mandatory cancellation  on character grounds, you have the opportunity to request ‘revocation’ of the cancellation decision within 28 days. In order words, you can ask for your visa back.  If that request fails, then there are further appeal options, including merits review by the Administrative Appeals Tribunal or judicial review, depending on whether the Department made the adverse decision, or whether the Minister of Immigration did so personally.  However, if you are ultimately unsuccessful in having your visa re-instated, you will be removed from Australia and will never be permitted to return.

Additionally the Department frequently issues Notices of Intended Cancellation or Refusal of visa applications to visa applicants or visa holders in the community when they become aware of pending criminal charges or past significant criminal convictions. Such persons are asked to comment on their convictions or pending criminal charges, and give reasons why the visa application should not be refused, or the visa cancelled. It is very important to get prompt legal advice in relation to such Notices. If your visa is cancelled or refused on character grounds, any bridging visas will also be cancelled, and you may be immediately arrested without notice and taken into immigration detention as you no longer hold a visa.

There has been a significant increase in the rate of character cancellations and refusals by the Immigration Department in recent years, as you can see from the following graph –

 

chart1.jpg
Source: Department of Immigration and Border Protection

Appeals to the Administrative Appeals Tribunal (AAT)

Have you had a visa refused or cancelled and do you have a right of appeal to the AAT?

What does the AAT do?

The AAT provides an independent and thorough review of decisions made by the delegates of the Minister for Immigration and Border Protection, otherwise known as ‘primary decision makers’ where a decision in relation to a reviewable visa is unfavourable to the applicant.

The AAT is not a policy or law-making body and it does not engage in political debate on refugee or legislative policy issues.

The AAT has the power to:

  • affirm a decision
  • vary a decision
  • set aside a decision and substitute a new decision, or
  • remit a decision to the decision-maker for reconsideration.

Applying for Review by the AAT

To apply for review:

Applications can be made online or application forms can be printed out from the tribunal’s website.

Applications must be lodged within the prescribed time period.

The AAT does not have the power to override the time limits prescribed by legislation, and applications lodged outside the timeframes cannot be accepted.

What do you need to do to succeed at the AAT?

Many of the matters that come before the tribunal are a result of visa applications that are refused due to a lack of information and lack of credible supporting evidence being provided to the primary decision maker.

When applying for a review you have to look carefully at the material that was provided to the primary decision maker and ascertain what additional information or documentation would assist the applicant to demonstrate that they satisfy the criteria in dispute for the particular visa that is being sought

The delegate’s decision will generally indicate the material that was lacking for a favourable decision in the initial assessment process. 

If this material is available, providing it to the tribunal may facilitate a favourable decision on the papers to be made. 

How do you adduce additional evidence before the Tribunal?

Oral evidence given under oath or affirmation in Tribunal hearings

Any evidence given by applicants and other witnesses ought be in the form of a statutory declaration or sworn evidence at the hearing.  This enables the tribunal to place more weight on it.

Any hearing invitation will ask you to provide any up to date submissions prior to the hearing (usually 7 days prior).

Hearings

Hearings may be held in person before a member in Perth, by way of video link to a member sitting in another state, or in some cases may be by phone (e.g. visitor visas).

The order of processing cases

The following cases are given the highest priority:

  • Cases involving persons in immigration detention.
  • Cases where there is a question as to whether or not we have jurisdiction to conduct a review.

The following cases are to be given the next highest priority:

  • Cases where the President or a Member or officer authorised by the President, decides there are compelling reasons for prioritising the case.
  • All visa cancellation cases.
  • All protection visa cases.
  • Cases remitted or returned from a court for the AAT to reconsider.
  • Cases remitted to the Department of Immigration and Border Protection and which have again been refused, resulting in the applicant making a further application for review.
  • Close family visitor refusal cases in accordance with regulation 4.23 of the Migration Regulations 1994.

Time frame for decisions

As each case is different, it is difficult to say how long it will take for a decision to be made on your case. The length of a review can vary depending on the type of case, the investigations that might be required, the overall workload of the AAT, and the priority given to the case.

In some cases, the Member may announce the decision at the end of the hearing.  However, in most cases a decision will be given at a later date.

Video Guides for Applicants

The AAT has created a useful video for applicants as to how the appeal process works - http://www.aat.gov.au/migration-and-refugee-division/video-guides-for-applicants

These videos provide information about applying to the Migration and Refugee Division of the AAT for review of visa refusals and cancellations.

The videos are available in English, Arabic, Farsi, Mandarin, Punjabi and Vietnamese.

 

Assistance by Putt Legal

If you have had a visa refused or cancelled and have appeal rights, or are unclear whether you have a right to appeal, we suggest that you contact us as soon as practicable to discuss.

Putt Legal’s lawyers are experienced at assessing cases and successfully advising and representing clients at the AAT. Of particularly importance is an honest and accurate assessment of your prospects of success, consideration of what further evidence is required for the appeal, and the preparation of detailed written submissions.

Please contact Alisdair Putt or Jessica Edis at Putt Legal to discuss further.