This website is for use by legal professionals (lawyers and law practices) only. If the information is used incorrectly, you could risk losing money or your legal rights. If you are a member of the public looking for free advice about your legal problems please visit legalaid.vic.gov.au, or contact our Legal Help advice line on 1300 792 387, Monday to Friday from 8 am to 6 pm. 

If you decide to use or rely on the information or make decisions based on the information in this website (which VLA does not recommend) VLA is not liable to you or any third party in any way for any loss, damage, costs or expenses you or they may suffer or incur as a result.

Discretionary process for cancelling a visa

Information about how the minister decides whether to cancel a visa or not when they can use their discretion.

This is the process to follow in situations where the Department of Home Affairs (DHA) can use discretion about whether a person's visa should be cancelled or not. DHA have discretion to cancel a visa if:

  • DHA reasonably suspects that the person does not pass the character test, and
  • the person does not satisfy DHA that they do pass the test.

See Character test.

Where the visa cancellation process is discretionary, the investigation will proceed in the following way:

1. Department of Home Affairs (DHA) notified

The department are usually notified that a person has a substantial criminal record while they are in prison.

What is a substantial criminal record?

A substantial criminal record means that the person has been:

  • sentenced to death or to life in prison
  • sentenced to prison for 12 months or more
  • sentenced to 2 or more prison terms (even if served concurrently) that add up to 12 months or more
  • found by a court to be not fit to plead in relation to an offence but found to have committed the offence and as a result have been detained in a facility or institution.

See s. 501(7)—Migration Act 1958 (Cth)(opens in a new window).

Starting the cancellation process

DHA will generally start the cancellation process during the last 6 months of a person’s sentence. However, DHA can consider cancelling a person’s visa at any time during their sentence, or even after they have been released from prison.

2. DHA sends 'Notice of Intention to Consider Cancellation'

Before a person’s visa is cancelled, DHA will send a 'Notice of Intention to Consider Cancellation' (the Notice).

Note: This will not happen if the minister makes the decision to cancel the visa personally. If this happens the rules of natural justice do not apply.

See Appeal to the Federal Court of Australia.

Responding to notice

A person must respond within 28 days of receipt of the Notice and will need to show:

If a person has a substantial criminal record they will fail the character test.

Note: It is vital that applicants comply with time limits. No extensions will be given.

If criminal record information is wrong

If the information on the criminal record that is included with the Notice is incorrect or incomplete, a person has 14 days from the date of the Notice to tell DHA.

If planning to appeal against sentence

If a person is appealing their conviction or sentence and the appeal has not been heard then DHA should be informed. They will usually hold off making a decision until the appeal is finalised.

3. DHA prepares an issue paper

The issues paper will include all information collected by DHA and will be given to a DHA officer who will make a decision whether to cancel the visa or give the person a warning.

4. DHA sends Notice of Visa Cancellation letter or warning letter

Once a decision has been made by a DHA officer, DHA will send either a Notice of Visa Cancellation letter or warning letter.

A person who receives a warning may still have their visa cancelled at a later date if convicted of other offences.

5. Appeal to Administrative Appeals Tribunal (AAT)

A person who receives a Notice of Visa Cancellation letter has 9 calendar days to lodge an appeal with the General Division of the Administrative Appeals Tribunal.

The AAT has no power to extend the time for making an application for review.

Application forms and explanatory material are available from the AAT website. The application must include a copy of the notice of the decision and any other documents provided to the person when notified of the decision.

Cost of applying

The full fee for making an application is $1011 (as at 3 March 2023). However, a reduced fee of $100 is payable if the person is in prison or immigration detention, holds a Commonwealth concession card or has been granted legal aid. The AAT can also order that the reduced fee of $100 is payable where payment of the full fee would cause financial hardship to a person.

See Administrative Appeals Tribunal—Forms(opens in a new window).

Specific procedures and strict time limits apply to an application for review of a decision under section 501 of the Act. The AAT must make a decision on the application within 12 weeks after the day on which the person was notified of the decision or it will be taken to have affirmed the decision under review.

The AAT website has more detailed information for non citizens and their representatives when seeking a review on character grounds. There is also a link to recent AAT decisions on visa refusal and cancellation.

6. Appeal to Federal Court of Australia

If the Minister personally cancels a person’s visa, there is no right of review to the AAT. In this case, there are limited rights of appeal to the Federal Court. An appeal must be lodged within 35 days of being notified of the Minister’s decision.

See Appealing to the Federal Court.

More information

Legislation

Migration Act 1958 (Cth)

  • s. 501—cancellation of visa on character grounds

See Migration Act 1958 (Cth)(opens in a new window).

Reference

Department of Home Affairs

This is the guideline to help Department of Home Affairs delegates to make a decision about whether to cancel a visa or not.

See Minister's Direction No. 99 Migration Act 1958 (pdf, 1.2 MB)(opens in a new window).

Administrative Appeals Tribunal

The AAT website has more detailed information for non-citizens (and their legal representatives) who are seeking a review of a via cancellation based on character grounds in the General Division of the AAT.

See:

For information about fees see Administrative Appeals Tribunal—Forms(opens in a new window).

Updated