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CANCELLATIONS OF VISAS

Introduction

If you fail the “character test,” the Department of Immigration and Border Protection (DIBP) has the authority to revoke any type of visa (temporary or permanent). Section 501(6) of the Migration Act of 1958 (the Migration Act) defines the character test. If you don’t pass the character test, your visa applications may also be rejected.

  • You won’t be deemed morally acceptable if you:
  • a “substantial criminal record”—see what that means below—or
  • have ties to a person, group, or organisation who is thought to be engaging in criminal activity; or
  • based on your past and present criminal or general conduct, lack moral character; or

are highly likely to act in an unacceptable manner in the future.

Introduction

If you fail the “character test,” the Department of Immigration and Border Protection (DIBP) has the authority to revoke any type of visa (temporary or permanent). Section 501(6) of the Migration Act of 1958 (the Migration Act) defines the character test. If you don’t pass the character test, your visa applications may also be rejected.

  • You won’t be deemed morally acceptable if you:
  • a “substantial criminal record”—see what that means below—or
  • have ties to a person, group, or organisation who is thought to be engaging in criminal activity; or
  • based on your past and present criminal or general conduct, lack moral character; or

are highly likely to act in an unacceptable manner in the future.

What does a significant criminal history mean?

An individual will have a significant criminal history if they have been:

  • convicted and given a sentence of 12 months or more in prison;
  • a number of shorter prison terms (all at the same time),
  • that total at least two years (either all at once or at various times); or
  • Detained after being found not guilty due to mental illness.

If you have a substantial criminal record you fail the character test and DIBP may cancel your visa.

Tip

When calculating a “period of imprisonment”, DIBP will include parole periods, suspended sentences, time spent in periodic detention, or time spent in drug rehabilitation or mental health facilities if they were ordered as a sentence by a court. Sentences received for juvenile offences can also be included.

What happens if my visa is cancelled?

  • If your visa is cancelled you cannot remain in Australia unless you get another type of visa.
  • You cannot apply for any other visa except a protection (refugee) visa or a bridging visa.
  • Once you have finished your prison sentence, you will be removed from Australia and returned to the country of which you are a citizen. Most of the time this is the place you were born.
  • After you have been removed from Australia you will never be able to return

If you fail the character test and have a significant criminal history, DIBP may cancel your visa.

Tip

When determining what constitutes a “period of imprisonment,” DIBP will take into account parole periods, suspended sentences, time spent in reoccurring detention, or time spent in drug rehab or mental health facilities if they were stipulated as punishment by a court. It is also possible to include sentences handed down for juvenile offences.

What occurs if my visa is revoked?

  • If your visa is revoked, you must obtain a new visa in order to stay in Australia.
  • Except for a protection (refugee) visa or a bridging visa, you cannot apply for any other type of visa.
  • You will be expelled from Australia and sent back to your home country after serving your entire prison term. This is typically the location of your birth.
  • You won’t be allowed to return to Australia once you’ve been expelled.

 

Has your visa been refused or cancelled?

Visa Refusal Appeal

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Cancelling a visa – how it works
Step 1 :
DHA is aware that you have a lengthy criminal history. Typically, this takes place while you are incarcerated. In most cases, DHA won't begin the cancellation procedure until you're six months into your sentence. However, DHA has the option to revoke your visa at any time, whether you are incarcerated or have been released.
Second step
Your Notice of Intention to Consider Cancellation is sent to you by DHA. This notice indicates that DHA is thinking about revoking your visa. At this time, there is no firm decision in place. You will have the opportunity to explain to DHA why your visa shouldn't be revoked. Your visa may be revoked by the Minister of Immigration and Citizenship as well. This indicates that the Minister, and not a DHA officer, personally makes the decision. There is no appeal to the AAT for this kind of cancellation, and the Minister will not follow the same procedure as described here. If the Minister is thinking about revoking your visa, you should seek legal counsel (see 8. Important Contacts).
Step three :
The DHA cancels your visa and notifies you in writing.
This indicates that the decision to cancel your visa has been made. You must move swiftly (see 4. What should I do now that my visa has been revoked?).