Section 501(3A) of the Migration Act states that a visa must be cancelled when the visa holder has been sentenced to imprisonment or has been found guilty of a sexually-based crime involving a child, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth. This is also called a mandatory cancellation.
Do you have a section 501 cancellation? What should you do next? The way forward after a section 501 cancellation is different to visa cancellation under different sections of the Migration Act. The very first question is, who cancelled your visa? Was the decision-maker the Minister or a delegate of the Minister?
It depends on who cancelled your visa.
If the Minister or Assistant Minister personally cancels your visa, then you have no right of review to the AAT. The only opportunity for appeal is in the Federal Court. You must convince a Federal Court judge that the Minister infected their decision with some type of legal error.
If your visa is cancelled under section 501 but not by the Minister or Assistant Minister, then you will usually have an opportunity to seek a review of the cancellation. You must act promptly if you wish to seek a revocation of the decision. Please be aware that you may still have to wait a very long time to get a determination regarding the revocation of the Department’s decision.
The opportunity for appeal is in the general division of the AAT. If a delegate of the Minister cancels your visa, we can help apply for revocation of the cancellation asap.
It is important to note that even making a skeleton response within the prescribed time is very important, as additional submissions may be made afterwards up until the decision is made. This means that after making the initial submission, within the prescribed time, a visa holder may be able to put in further supporting materials, including psychologist reports, in support of their application for revocation.
Direction No 99 of the Migration Act 1958 came into effect on 3 March 2023. This is of great relevance if you have received a visa refusal or cancellation under section 501. Direction No 99 gives non-citizens a higher level of tolerance for criminal and other serious conduct if they have lived in Australia for most of their life or from a very young age.
The longer a non-citizen has spent in the Australian community, particularly from a young age, then the higher level of tolerance.
All non-citizens who wish to enter or remain in Australia must satisfy the character requirement.
The Department decision-maker takes into account the following primary considerations:
If you have failed to satisfy these and the other requirements of the character test, your visa may be refused or cancelled.
Essentially, the more connected the offending non-citizen is to Australian citizens, the more weight the decision-maker must give to ties to children who are citizens, and other family members who have the right to remain in Australia indefinitely. That is strength.
The nature and duration of ties are the weight the Department gives to the time the non-citizen has resided in Australia, particularly ordinarily resident during their formative years regardless of when they started to break the law and the level of their offending.
The decision-maker will give more weight to positive contributions the non-citizen made to the Australian community during that time.
The delegate will give much less weight to the non-citizen when they were not usually resident during their formative years and their offending started soon after they arrived in Australia.
The Migration Act defines a substantial criminal record. You have a substantial criminal record if:
If you appeal to the Tribunal, you will usually be listed for a one-day hearing. But this can proceed beyond one day. The Tribunal makes decisions within a relatively short period of time.
If the Minister (not a delegate) cancels your visa, you need to make an application to the Federal Court of Australia (not the Federal Circuit Court). Your hope is you can show that the decision is infected with some legal error and have it quashed. The length of the appeal process to the Federal Court will be different for each case, normally around 7 months, give or take 3 months.
Revocation case litigation in the Federal Court is different to the AAT. Make sure your advisor is experienced in running section 501 appeals.
A forensic psychologist listed below might be of assistance to you in the case of a visa cancellation under section 501 of the Migration Act. Below, I’ve compiled a list of psychologists that you may wish to contact, to find somebody suitable for your needs.
Please do let me know what your experience is with these psychologists. I will add others if you let us know you are aware of any.
Perhaps the biggest issue in winning a case where a visa has been cancelled because of failing the character test is the challenge to show to the decision-maker that there is no risk of re-offending. Of course, this is very difficult to show yourself. You know that you will not re-offend and but how do you prove it? A psychologist’s report might be useful to assist you to demonstrate or corroborate what in fact is the risk of re-offending.
Even if you are successful in quashing a decision of the minister in the Federal Court, your success may be very hollow.
This is because there is a power for the minister to simply remake the decision to cancel once again. But on the second occasion to learn from whatever error was made the first time, and to again cancel the visa. But this time the minister can cancel in such an impeccable manner to leave no challenge of having any legal error.
Preferably, you would speak to an immigration lawyer like me.
At MyVisa®, we are solicitors and registered migration agents. We can act as your legal advisor before the Administrative Appeals Tribunal (“Tribunal”). We’ll brief a barrister to appear with us at your hearing and we will instruct your barrister at the hearing.
Book a chat with me today to see if we are a good fit!