Key Takeaways
- Mandatory visa cancellation under the Migration Act 1958 affects non-citizens serving prison sentences in Australia.
- Automatic cancellation occurs for non-citizens sentenced to 12 months or more in prison, life sentences, or convicted of child-related sexual offences.
- Affected individuals can challenge visa cancellations by applying for revocation within specific timeframes (28 days if notified in person, 35 days if mailed).
- If revocation is denied, appeals can be made to the Administrative Appeals Tribunal or the Federal Court, depending on who made the decision.
- Legal assistance is crucial when facing visa cancellation; resources like Victoria Legal Aid and the Administrative Appeals Tribunal provide support.
Non-citizens serving prison sentences in Australia may face mandatory visa cancellation under the Migration Act 1958. The Department of Home Affairs enforces this policy as part of its immigration and border security measures. If your visa is cancelled, you will receive a Notice of Visa Cancellation, detailing the reasons and available options.
This guide provides an overview of mandatory visa cancellations, explains your rights, outlines how to challenge such decisions, and highlights key legal resources.
Who Is Affected by Mandatory Visa Cancellation?
Under the Migration Act, the Department of Home Affairs is required to automatically cancel a visa if the holder:
- Is serving a full-time prison sentence
- Has been sentenced to 12 months or more in prison, including cumulative sentences
- Has received a life sentence
- Has been sentenced to death
- Has been convicted of a child-related sexual offence
Other Grounds for Visa Cancellation
Even if your visa is not subject to automatic cancellation, it may still be cancelled on ‘character grounds’. If this applies to you, you may receive a Notice of Intention to Consider Cancelling Your Visa.
If you receive such a notice, seek legal advice immediately.
What Happens After a Visa Cancellation?
If your visa is cancelled, you will receive a Notice of Visa Cancellation. This document confirms:
- That your visa has been cancelled.
- Your right to apply for revocation.
- The deadline for submitting a revocation request.
If you do not apply for revocation within the specified timeframe, you may be deported after completing your prison sentence.
Challenging a Visa Cancellation
If your visa is cancelled, you have the right to request revocation, meaning you ask the department to reverse its decision.
Time Limits for Applying for Revocation
- If you received the cancellation notice in person, you have 28 days from the date of the letter to apply.
- If the notice was sent by mail, you have 35 days from the date of the letter.
Steps to Apply for Revocation
- Submit a formal application requesting the revocation of your visa cancellation.
- Provide supporting documentation outlining reasons why your visa should not be cancelled. This may include factors such as family ties, length of residence in Australia, rehabilitation efforts, and risks of harm if deported
- Await a response from the department, which may request further information.
During the revocation process, you will remain in prison or immigration detention until a decision is made.
What If Your Revocation Request is Denied?
- If your application for revocation is unsuccessful, your options depend on who made the decision:
- If a departmental officer made the decision, you have 9 days to apply for a review at the Administrative Appeals Tribunal (AAT).
- If the Minister for Home Affairs made the decision personally, you cannot apply to the AAT but may have grounds for an appeal to the Federal Court of Australia.
Appealing a decision can be complex and requires legal expertise. Seeking legal advice as soon as possible is recommended.
Key Legislation
- Migration Act 1958: Establishes rules for visa cancellations, including grounds for character-based cancellations and revocation procedures.
- Migration Regulations 1994: Details procedural requirements for visa applications, cancellations, and appeals.
- Administrative Appeals Tribunal Act 1975: Sets out the framework for appealing visa cancellations and other immigration decisions before the tribunal.
Legal Assistance and Support
If you or a loved one is facing mandatory visa cancellation, obtaining legal assistance is essential.
Where to Get Legal Help
- Victoria Legal Aid: Provides free preliminary legal advice.
- Administrative Appeals Tribunal (AAT): Reviews certain visa cancellation decisions.
- Federal Court of Australia: Handles legal challenges against ministerial decisions.
How to Contact a Lawyer
- For Prisoners
- Request an appointment with the prison legal advice service.
- A migration lawyer will be assigned to your case.
- For Immigration Detainees or Family Members
- Call Victoria Legal Aid on 1300 792 387.
Self-Help Kit for Prisoners
Victoria Legal Aid’s self-help kit is available for prisoners dealing with visa cancellation. This guide explains the process in detail and provides templates for submitting a revocation request.
Conclusion
Mandatory visa cancellations can have serious consequences, including deportation and family separation. Understanding your rights and legal options is essential for a successful challenge. Whether you are applying for revocation, seeking a tribunal review, or considering judicial review, timely legal action is crucial.
At Pentana Stanton Lawyers, we specialize in visa cancellations, revocation applications, and appeals before the Administrative Appeals Tribunal (AAT) and the Federal Court of Australia. Our experienced team provides expert guidance to navigate the complexities of the immigration system and protect your legal status.
Contact us today to discuss your case and explore your legal options.
