New Ministerial Direction for Visa Cancellation Decision Making Potential Retroactive Impact

This article warns readers of an upcoming change in the way that decisions about visa cancellation (and visa application refusal) on character grounds will be made. The changes could impact upon non-citizens that have a criminal record and that have applied for a visa; those that have received a notification from the government that their visa might be cancelled; and those that have already had their visa cancelled and would like to get it back. If you have already made a response to the government about one of these types of matters and await the outcome, you should read on!

Potential retroactive impact

Visa applications can be refused if the visa applicant has engaged in serious conduct, such as criminal activity. The Government refuses to grant the visa so that the Australian community will be protected from potential wrongdoing of the visa holder. A visa that has been granted to a non-citizen can be cancelled. Even a permanent visa holder that has lived in Australia for many years can suddenly receive a Notification of Intention to Consider Cancellation. The visa holder will need to provide reasons why their visa should not be cancelled. Mandatory visa cancellation also occurs. When this happens, the former visa holder can make a revocation request to try to get their visa back. If their request to have the cancellation revoked is successful, they will be able to re-join their family and friends and be given the chance to demonstrate that they can contribute lawfully in the Australian community.

Previously, when there were concerns about the non-citizen’s character, the decision maker who assessed whether the visa application should be approved, whether the visa should be cancelled, or whether a cancelled visa should be reinstated, had to follow the requirements of Ministerial Direction #79. From 15 April 2021, Ministerial Direction #90 will apply.

This is important because the new requirements could be implemented retroactively. A common scenario occurs when an inmate at a prison engages an Immigration Lawyer to represent their interests and to help explain reasons why their visa should be reinstated. The submission and supporting evidence would have been built around the requirements of Ministerial Direction #79. It could not have contemplated the additional requirements that will be found in Ministerial Direction #90 as the announcement is recent.

If the decision maker assesses the claims after 15 April 2021 then they will not have a submission nor evidence that responds to the new requirements. The main change is the inclusion of family violence considerations. If the non-citizen has been involved in family violence, the decision maker will not have appropriate evidence or information to weigh against the damaging evidence held by the Department, and which has become highly relevant. Without persuasive argument (supported by appropriate counter-vailing evidence) the non-citizen could experience an adverse outcome that could have otherwise been a positive one had the Ministerial Direction not changed.

Family violence

What should a non-citizen subject to visa cancellation (or to potential visa application refusal) that has already submitted a response do…?

If you (or your loved one) have no history of involvement in family violence, you may not have to do anything. The first step is to discuss this new development with an experienced Immigration Lawyer. Visa application refusals and visa cancellations are serious legal matters. The bar to achieve a successful outcome has been raised. More visa applications will be refused. It will become more difficult for some non-citizens to prevent a visa cancellation. Those that have lost their visa under mandatory visa cancellation provisions will find it tougher to get their visa back if there is evidence that the non-citizen has been involved in family violence.

Potts Lawyers Immigration Law team can explain these new requirements. We can assess the potential impact they might have upon you. We can suggest evidence that can strengthen your case and improve your prospects for success.

If you have already made a response, we can help. We can assist you to make a supplementary response that can fill the gap between the old requirements and the new.

As there is no way of determining when a matter will be processed by those that work in the National Character Consideration Centre, we recommend that you contact the Potts Lawyers Immigration Law team without delay.