Earlier today news broke that former Adelaide gang leader Vince Focarelli has received a Notice of Intention to Consider Cancellation (NOICC) from the Department of Immigration and Border Protection (DIBP). The Minister of Immigration, Peter Dutton has exercised visa cancellation powers granted to him under section 501 of the Migration Act 1958.
Visa Cancellations in Numbers
Since the power to cancel visas was amended in December 2014, there has been a large increase in visa cancellations compared to the previous period. The number of visas cancelled under section 501 of the Migration Act increased from 76 cancellations in 2013-14 to 983 cancellations in 2015-16. The Commonwealth Ombudsman published a report about the Minister’s new cancellation powers and identified various issues which have placed visa holders facing visa cancellation and deportation various hardships and difficulties. The report also provides a few recommendations which demonstrate the need for the cancellations powers to be exercised with consideration.
Recent Visa Cancellation Headlines in the Media
In addition to Vince Focarelli there have been a number of other prominent figures who were charged or convicted of a criminal offence. These individuals had their visas cancelled while they were overseas or forcibly placed in detention centres to await deportation upon their visa cancellation. In the State of Victoria alone 173 foreigners with Australian visas had their visas cancelled last year. Other cases reported in the news who have had their visas cancelled include:
- AJ Graham, founding member of the Rebels in Tasmania
- Leonard Gjeka, former bikie
- Shane Martin, father of AFL star Dustin Martin
- Alex Vella, national president of the Rebels bikie gang
Some have been deported while others are challenging the decision to cancel in the courts.
The two main types of character cancellations – discretionary or mandatory
There are two main types of visa cancellation under s501 of the Act, which are:
- Discretionary cancellation under s501(1), (2) and (3)
- Mandatory Cancellation under s501(3A)
Discretion to cancel under s501(1) , (2) and (3):
If the Minster is considering a discretionary cancellation, then the Minister must follow a process which includes providing a Notice of Intention to Cancel.
There are a range of factors that the Minister or the Ministers delegate must weigh up before proceeding to make a discretionary cancellation.
The primary considerations und Direction 65 that the Minister must take in to consideration before cancelling a visa include:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian Community.
There are also “Other Considerations” detailed in Direction 65 which the Minister must consider, which are:
In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
Mandatory Cancellation under s501(3A)
Under section 501 part (3A) of the Migration Act the Minister must cancel a visa that has been granted to a person if they:
- Have a ‘substantial criminal record’ on the basis that:
- receiving a death sentence
- receiving a sentence of life imprisonment
- sentenced to a term of imprisonment of 12 months or more plead of insanity and detainment in a facility or institution
- not being fit to plead, but found guilty of an offence and detailed in a facility or institution
- a court in Australia or a foreign country has convicted the person of one or more sexually based offences involving a child, or found guilty of such offences against a child, even if discharged without conviction.
The significant rise in visa cancellations has been the result of decisions made under the mandatory cancellation s501(3A) in December 2014.
What do you need to do when you receive a Notice of Intention to Consider Cancellation (NOICC)?
Migration Lawyer Chris Johnston will be able to provide assistance for visa applicants who have received a visa application refusal and visa holders who are facing a possibility of having their visas cancelled. We can help you with the following:
- analysing your application or visa cancellation issues
- identifying time limits for appeals or providing a response, and working within those time limits
- advising you on your options to appeal the refusal, visa cancellation or respond to a NOICC
- assisting you with the collection of supporting information and documents for your appeal or response to the NOICC
Each visa type and circumstances are different for everyone, and will require a different approach when submitting an appeal or response to the DIBP. More importantly you need to seek migration advice immediately to be able to submit your appeal or response in time. The longer you take to respond the harder it will be to obtain or maintain your Australian visa.
Revocation of the Visa Cancellation Decision
If you want to apply to have your visa reinstated following cancellation, you must invoke your right to seek revocation by sending the request for revocation form to the Department within specified time frame.
- If a staff member from the Department directly handed you the notice of cancellation of your visa, the prescribed period in which you must request revocation is 28 days from the date of the letter
- If the Department sent you the notice of cancellation of your visa, via post, the prescribed period in which you must request revocation is 35 days from the date of the letter.
A successful revocation may only be a short term win for you as the Minister has the power to cancel the visa again.If the Department does not agree to reinstate your visa, you may be able to appeal the decision at the Administrative Appeals Tribunal or the Federal Court.
Comments by Chris Johnston – Principal Lawyer and Registered Migration Agent at Work Visa Lawyers
While the news media has highlighted the visa cancellations of individuals with prominent charges or convictions, you should be aware that the section 501 visa cancellation powers can be extended to any visa holders who have a pending criminal charge or conviction. You do not need to have committed a serious crime or be a repeat offender to face visa cancellation under section 501. There have been cases where an individual charged with an offence (not convicted as yet) has had his visa cancelled while waiting for the court hearing, which can be a few months after the charge was made. As a result the individual was moved to a detention centre while waiting for the court hearing.
The current focus of the Minister and his department means that there will be more visa holders, temporary or permanent, who will be facing such cancellation notices and decisions. You are advised to seek counsel with a Migration Lawyer as early as possible if you are in a situation as such.
This information is accurate on 24 February 2016
Do you need help with an Australian visa application or visa cancellation decision?
At Work Visa Lawyers we are experienced in assisting applicants in all matters relating to Australian visa applications. Our areas of expertise include Skilled Migration visas, Business Skills Migration visas, Employer Sponsored Work Visas, Partner and other Family Migration visas as well as the Administrative Appeals Tribunal (AAT) Review, Judicial Review and Ministerial Intervention.
If you require further information regarding your Australia visa options you can contact us through:
(08) 8351 9956 or +61 8 8351 9956