ADVANCE NOTICE OF PLAN TO CONSIDER CANCELLATION
If you receive a Notice of Intention to Consider Cancellation, what should you do?
- The following are some frequent causes of visa cancellations:
- granting a visa based on a fact or circumstance that is no longer true
- Granting a visa based on an untrue fact or circumstance
- violation of a visa requirement
- Inaction on the part of another person
- false or inaccurate information in documents
- Risk to the public health, safety, or peace of the community
- Obtaining a visa broke the law.
- Non-legitimate students and behaviour not permitted by the visa
- Unsatisfied regarding identity
- Non-visa application-related incorrect information
- The phrase “cash for visas”
Overview
You will receive this Notice from the Department of Home Affairs (DHA), as well as other papers like your criminal history. DHA will request your input on the data.
After that, DHA will create an Issues Paper. It will contain all the pertinent data that DHA has gathered from individuals like you and others. A decision-maker receives the Issues Paper.
You should send a letter to DHA outlining your arguments for not having your visa cancelled.
After reviewing the Issues Paper, the decision-maker will decide whether to revoke your visa OR issue you a warning.
DHA will inform you in writing of their choice. Either a warning letter or a notice of visa cancellation will be sent to you.
Even if you only receive a warning and your visa is not revoked, it is still possible that it will be in the future if you are found guilty of additional crimes.
You may file an appeal with the Administrative Appeals Tribunal (AAT) if your visa is revoked.
How to react to a notice that you plan to consider cancelling
You are required to respond to two inquiries in the Notice:
“Do you pass the character test?” is the first question.
After receiving the Notice, you have 14 days to respond.
“Should your visa be cancelled?” is question number two.
After receiving the Notice, you have 28 days to respond.
“Do you pass the character test?” is the first question.
First, make sure the criminal record that was sent to you is accurate. You will have a “substantial criminal record” and fail the character test if you have received a sentence of more than 12 months in prison or at least two separate sentences totaling more than 2 years. You can inform DHA that you failed the character test in this case without writing to them. You must still explain in writing to DHA why your visa should not be revoked.
Write to DHA and explain why the information is incorrect if it is. For example, maybe the list includes offences that are not yours because they belong to someone with the same or a similar name. Or maybe the sentences are wrong. To back up what you say, provide supporting documentation. The attorney who defended you during your criminal trial might be able to assist you in obtaining this information.
Inform DHA if your appeal has not been heard and you are appealing your sentence or conviction. DHA frequently delays making a decision until all appeals have been resolved.
“Should your visa be cancelled?” is question number two.
You have the opportunity to explain to DHA why you believe that your visa should not be cancelled.
You should explain why your visa shouldn’t be cancelled despite the fact that you have a criminal history in your response. Give your own personal account of the events.
Making a statement about your life to try and explain the circumstances of your offence, your background, your childhood, etc., is helpful if you are able to do so.
You are not required to send all the information at once; you may continue to send information up until the deadline. Even after the due date—which may be after it—you can send information until the decision is made regarding your visa.
Your account of events
If you don’t pass the character test, DHA is not required to cancel your visa. DHA will take into account things like the possibility that you staying would endanger the Australian community and the repercussions for you and your family should you be forced to leave Australia.
In a document titled Ministerial Direction 41, the DHA outlines the criteria it will consider when determining whether or not to cancel your visa. You will receive a copy of this along with the Notice. It contains comprehensive instructions on the factors that DHA may consider when deciding whether to cancel your visa. “Primary considerations” are those that DHA is required to take into account, and “secondary considerations” are those that DHA is permitted to consider.
principal factors
- The following are the main factors that DHA must take into account:
- the safety of the Australian people, including:
- the severity and nature of the crime(s); and
- the potential for reoffending by you.
- whether you immigrated to Australia as a young person.
- how long you were a resident of Australia before committing a crime.
- Australian obligations regarding human rights.
- Below, we go over these in more detail.
The severity and type of the criminal offense(s) are described in 1(a).
Your criminal history is on file with DHA, so they are aware of the kinds and number of offences you have committed. However, they won’t be aware of what was happening in your life at the time you committed the crimes, so take advantage of this opportunity to discuss the circumstances surrounding your crime(s). Here are some topics you could talk about:
- the nature of the offence you have committed;
- the judgment(s) you were given;
- how long there is between offences;
- how long it’s been since your most recent transgression;
- Whether your offence is one of the “serious offences” listed in
- Ministerial Directive 41 (if it is missing from this list, please let us know).
Any information (or mitigating circumstances) that sheds light on your motivation for committing the crime will be taken into account by DHA. This includes details about the events that were taking place in your life at the time.
- “Mitigating factors” are things that could lessen the severity of an offence or provide context for it. Examples include:
- a dependency on drugs or alcohol at the time of the offence;
- your age when the offence was committed;
any issues with mental health at the time of the offence;
- circumstances from your childhood or family history, like a
- a background of abuse or violence directed at you; or
- additional personal circumstances, such as losing your job, you
- issues involving your husband/wife, kids, or family.
Important
It’s crucial to demonstrate that you are aware of how serious the offence is, especially in light of the repercussions for the victim(s).
1(b) The possibility of a repeat offence
Here, you should outline your efforts towards rehabilitation as well as your future goals after being released from jail or prison. You must demonstrate that the actions you have taken or intend to take will lessen the likelihood that you will commit another crime. For instance, you might mention that you have a job lined up or that you intend to enrol in a rehabilitation programme.
You may use the following types of evidence to back up your answer:
- evidence of any education, anger management classes, or drug and alcohol classes you’ve taken since your last offence;
- whether you have lived in the community during the time since your most recent offence, which must have been a significant amount of time;
- that you have never violated a court order (like a bond, parole, or bail) or that your most recent violation was many years ago;
- that you have never violated a prison facility’s rules or that your most recent infraction was a long time ago;
- anything encouraging that a magistrate, judge, or other expert (like a psychologist or parole officer) has said about your recovery;
- information on community members who can support you and assist you in preventing any further offences, along with an explanation of who they are, how you know them, and how they can assist you; and
- illustrative examples of how you have contributed to your neighbourhood, including your friends, family, church, sports team, or other members of the neighbourhood (for instance, volunteer work, coaching a sports team, or providing for a needy person).
Whether you immigrated to Australia as a young person
You can share details about your arrival date and length of stay in Australia in this category. It’s important to note that if you arrived in Australia before turning 18 and spent your “formative years” there, this is significant. Your “formative years” typically last from the age of eight to fifteen.
The types of information you might provide are:
- age at which you first resided in Australia;
- that you were born, raised, and attended school in Australia; or
- that you haven’t visited your home country in a long time or never.
How long have you resided in Australia?
It is crucial to mention this if you have lived in Australia for a considerable amount of time. Include here items such as:
- if you have lived in Australia for more than, let’s say, ten years;
- how long you had been living in Australia before you committed any crimes;
- the number and proximity of your family members who reside in Australia;
- whether or not you live in Australia with a partner who is an Australian citizen.
Australia’s duties regarding human rights
Australia has signed a number of international conventions, pledging to uphold certain human rights standards. These include the Refugee Convention, the International Covenant on Civil and Political Rights, the Convention Against Torture, and the Convention on the Rights of the Child. If your visa is revoked, DHA must determine whether doing so would violate any of these Conventions.
Children (a)
The Convention on the Rights of the Child (CROC) contains a crucial international obligation. DHA must take into account whether any minors (those under the age of 18) would be harmed if you were expelled from Australia. This includes your own children as well as any other kids you have raised or are close to, such as your nieces, nephews, or even your brothers and sisters. DHA must take into account ideas like children’s rights to develop a relationship with their parents and other primary carers and to grow up in their family. This is referred to as determining what is in the child’s best interests.
You can offer different types of information, such as:
- if you have kids in Australia, how old are they;
- whether they are citizens of Australia;
- whether you are a parent, guardian, caretaker, aunt, or uncle to those kids;
- how close the bond is (What sort of attention have you given the kids? Prior to entering prison, did you reside with them? How frequently
- Now, do you see them? ); and
- how leaving Australia would affect your children (What would happen to them if you were to leave without them? Would they be able to move abroad with you and begin a new life? How would this affect them—would they be able to communicate, attend school, receive medical care, etc.?).
Refugee applications
DHA is also required by international law to take into account the possibility that returning to your home country could subject you to torture, persecution, or other cruel, inhumane, or degrading treatment. If you were a refugee who came to Australia, this is especially important.
- arrived in Australia on a visa for refugees;
- apprehension that returning to your home country would put you in danger
- who might harm you and why, as well as their point of origin;
- fear that if you had to go back to your country of origin, you would be killed or in danger of suffering serious harm or other mistreatment.
Second-order factors
The secondary factors that DHA may take into account are:
- relatives in Australia
- Your condition and age
- Links to your native country
- difficulty for you or your family
- Your educational background
- any previous DHA warnings that you may have received.
You can detail the challenges you might encounter if you have to leave Australia and return to your home country under secondary considerations. You can also discuss how it would impact your family.
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Contributory Parent Visa - Professional Fee (Permanent- SC143)
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$4,500
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There is a 1.4% credit card fee.
As mentioned above, you can apply for the temporary parent visa (subclass 173), which is valid for two years, and then apply for the permanent visa if you want to stagger the procedure. The benefit is a reduced second VAC charge of $29,130. Two years later, at the permanent stage, a second payment of $19,420 is due. The bearer of the subclass 173 visa may reside in Australia once the first stage (sc143) has been accepted.
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The following fees apply to the subclass 173 > subclass 143 pathway:
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There is a 1.4% credit card fee.
AoS, or assurance of support
There is also an AoS that must be paid at the time of choice. In the present, this costs $14,000 for two applicants. Ten years after your arrival in Australia on a contributory parent visa, you will receive your bond back, less any outstanding debts to the Australian government.
Duration of stay Permanently
The duration of the 143 visa’s processing
The Contributory Aged Parent Visa (subclass 864) may be more advantageous for you if you are over 65 since it allows you to remain in Australia while your application is being reviewed.
Medicare
You may enroll in Medicare if you have applied for a Contributory Parent Visa (143 visa) and currently hold a temporary 173 or 884 visa.
To learn more about your immigration possibilities, make an appointment with one of our Registered Migration Agents in Melbourne now for a commitment-free consultation