Department of Home Affairs (DHA) will send you this Notice plus other documents such as your criminal record. DHA will ask you to comment on the information.
DHA will then prepare an Issues Paper. It will include all the relevant information DHA has collected from you and others. The Issues Paper is given to a decision-maker.
You should write to DHA explaining why you think your visa should not be cancelled
The decision-maker will consider the Issues Paper and decide to either cancel your visa OR give you a warning.
DHA will write to you to tell you what they have decided. You will receive either a Notice of Visa Cancellation letter or a warning letter.
If your visa is not cancelled, and you only receive a warning, you still might be cancelled in the future if you are convicted of other offences.
If your visa is cancelled you can appeal to the Administrative Appeals Tribunal (AAT)
The Notice asks you to respond to two questions:
Question 1: “Do you pass the character test?”
You have 14 days from the date of the Notice to answer this question.
Question 2: “Should your visa be cancelled?”
You have 28 days from the date of the Notice to answer this question.
Firstly, check that the criminal record sent to you is correct. If you have been sentenced to more than 12 months in prison or at least two separate prison terms totalling more than 2 years, then you will have a “substantial criminal record” and fail the character test. In this case you do not have to write to DHA to tell them that you do not pass the character test. However, you still need to write to tell DHA why your visa should not be cancelled.
If the information is not correct, write to DHA and explain why the information is wrong – perhaps the list includes offences which are not yours (they belong to a person with the same or similar name) or perhaps the sentences are incorrect. You should attach evidence to support what you say. You may be able to get the lawyer who represented you at your criminal trial to help you get this information.
If you are appealing your sentence or conviction, and your appeal has not been heard, tell DHA this. It is common for DHA to put off making a decision until all appeals have been finalised.
Remember: You have 14 days to tell DHA if your criminal record is not correct or incomplete, unless you get an extension
Question 2: “Should your visa be cancelled?”
This is your chance to tell DHA why you think your visa should not be cancelled.
Your response should give reasons why, even though you have a criminal record, your visa should not be cancelled. Tell your side of the story in your own words.
If you are able to do so, it is useful to do a statement about your life to try and explain the circumstances of your offending, your background, your childhood etc.
You do not have to send all the information at the same time – you can keep sending more information until the due date. You can even send information up until the time the decision is made about your visa – sometimes this is after the due date.
Remember: you have 28 days to answer this question, unless you get an extension.
DHA does not have to cancel your visa if you fail the character test. DHA will look at factors such as the risk of harm to the Australian community if you stay and the consequences for you and your family if you have to leave Australia.
The policy that DHA uses in deciding whether or not to cancel your visa is in a document called Ministerial Direction 41. A copy of this will be provided to you with the Notice. It contains detailed guidelines about what DHA might take into account when it is thinking of cancelling your visa. These are called “primary considerations” (which DHA must take into account) and “secondary considerations” (which DHA may take into account).
The primary considerations which DHA must consider are:
These are considered in more detail below.
DHA will have your criminal record so will know about the types and number of offence/s you have committed. However, they will not know what was going on in your life at the time you committed the offences so this is your chance to explain the background to your offence(s). Some things you can cover here include:
DHA will consider any information (or mitigating factors ) which gives some background to why you committed the offence. This includes information about what was happening in your life at that time.
“Mitigating factors” are things that might make an offence less serious or help explain it, and might include:
Important
It is important to show that you understand the seriousness of the offence, particularly the consequences for the victim(s).
Here you should provide information about the steps you have taken toward rehabilitation, and your plans for when you are released from prison. You will need to show that the steps you have taken, or plan to take, will reduce the chances that you will commit another offence. For example, you might say that you are planning to go into a rehabilitation program, or that you have a job lined up.
You should also list the ties you have to the community, how you have contributed to your community in the past, and if you plan to contribute in the future. For example you might have coached a local football team, or have been involved in a church community.
The kinds of information you can use to support your response are:
In this category you can provide information about how long you have lived in Australia and when you arrived. If you came to Australia when you were under 18 years of age, and spent what is known as your “formative years” in Australia this is important to point out. Your “formative years” are generally between the ages of 8 and 15.
The kinds of details you might include are:
If you have lived in Australia for a long time it is important to point this out. Include here things like:
Australia has agreed to meet certain human rights standards by signing a number of documents called International Conventions. These include the Convention on the Rights of the Child (CROC), the International Covenant on Civil and Political Rights (ICCPR), the Convention Against Torture (CAT), and the Refugee Convention. DHA must consider whether cancellation of your visa would breach any of these Conventions.
(a) Children
A very important international obligation is contained in the Convention on the Rights of the Child (CROC). DHA must consider whether any children (less than 18 years old) would be affected if you were removed from Australia. This includes your own children or other children you have looked after or are close to and might include nephews and nieces, or even your brothers and sisters. DHA must take into account principles such as the rights of children to grow up with their family and to have a relationship with their parents and other carers. This is known as deciding what is in the best interests of the child.
The kinds of information you can provide include:
(b) Refugee claims
Another international obligation DHA must consider is whether you would be at risk of persecution, torture, or other cruel, inhumane or degrading treatment if you were sent back to your country of origin. This is particularly important if you came to Australia as a refugee.
You should include information about whether you:
The secondary considerations which DHA may consider are:
Under secondary considerations, you can provide information about the difficulties you might face if you have to leave Australia and go to your country of origin. You can also talk about how your family would be affected.
The kinds of information you can provide include:
You can include information about how your removal from Australia might affect the people you are close to in Australia, especially if anyone in Australia relies on you for anything (for example, money or practical help). You can also include any links you have to the Australian community or a particular community group. Examples of this kind of information you can include are:
Independent evidence is information from other people or sources which supports what you say. Where possible, try to include independent evidence.
Include documents like reports by doctors or psychologists, parole and pre-sentence or pre-release reports, and other letters or reports by qualified people.
Collect letters of support from as many people as possible – these can be from friends and family, as well as employers, community leaders and others. If someone is saying that you have a good character they should also say that they know about your criminal record. Other letters of support can be from people who will help you (by giving you a job or a place to live) when you get out of prison.
If you do not know how long you have to respond to the Notice of Intention to Cancel your visa, call the National Character Consideration Centre (NCCC) and they will tell you. The phone number is.
If you cannot provide your response within the time allowed, ask for more time. To do this contact the NCCC. Do not wait until the last minute. You should ask for more time as soon as you know that you will need it.
Even if you send in information after the time limit has expired, DHA must still take that information into account if they have not yet made a decision. This means that if the time limit for you to respond to the Notice has ended and DHA has refused to give you more time, you can still send in information and hope that it is received before DHA makes the decision. HOWEVER you should always try to provide any information within the time limit you are given.
Sometimes DHA will find out more information about you after it has sent you the Notice. When this happens, it will send you a copy of this additional information and give you some more time to respond to it.
To calculate your time limit to respond to a Notice of Intention to Consider Cancellation, look at the date on the last page of the Notice letter and add 7 working days if it was posted to you. Then add another 28 days (including weekends). If the Notice was faxed or emailed to you, add 28 days (including weekends) from the date on the letter (not the date you received it, unless this was the same day). See 5. Working out time limits for an example of how to work out time limits to respond to a Notice of Intention to Cancel.
After you have sent your response to DHA, the best way to know what is happening with your visa is to keep in contact with the National Character Consideration Centre (NCCC). You can also give someone else permission (an “authority”) to speak to the NCCC on your behalf. This does not need to be a lawyer.
Important
If you are released from custody before you get a decision, you should contact the NCCC to give them your new postal address and telephone number. Otherwise, they might not be able to find you to notify you of the decision, and you might miss out on your right to appeal the decision if your visa is cancelled.
No. If DHA has not cancelled your visa by the time your sentence has ended you will be released. If DHA is still only considering whether or not to cancel your visa, then your visa is still valid and there is no reason to detain you.
If your visa has been cancelled, see 4. My visa has been cancelled – what can I do?
Yes. DHA will usually notify the prison by telephone or fax when the decision is made to cancel your visa, but this information may not be given to you immediately. If you are taken to immigration detention and not released, it means that your visa has been cancelled.