Refugee and Immigration Legal Service

&
Immigration Advice and Rights Centre

Legal Information Kit*

Visa Cancellation under s501

of the Migration Act

RAILS and IARC do not guarantee the accuracy of any information contained in this
information kit. It contains general information and is not a substitute for legal advice. Visa
cancellation under s501 is extremely serious and will result in permanent exclusion from

RAILS & IARC 2009

Australia. Therefore you must seek expert legal advice about your specific circumstances as
soon as possible if you are faced with the possibility of cancellation under s501.

RAILS & IARC 2009

INDEX
1. WHEN CAN MY VISA BE CANCELLED UNDER s501?
2. WHAT IF I RECEIVE A NOTICE OF INTENTION TO CANCEL MY VISA?
3. HOW DO I SHOW THAT I PASS THE CHARACTER TEST?
3.1 Substantial criminal record
3.2 Association
3.3 Past and present criminal or general conduct
3.4 Significant risk in regards to future conduct
4. HOW DO I SHOW THAT MY VISA SHOULD NOT BE CANCELLED?
4.1 Primary considerations
4.1.1 Protection of the community
4.1.2 Whether you were a minor when you began living in Australia
4.1.3 Length of time you have been ordinarily resident
4.1.4 International obligations
4.2 Other considerations
5. IF MY VISA IS CANCELLED CAN I APPEAL THE DECISION?
4.1 Administrative Appeals Tribunal (AAT)
4.2 Federal Court
6. WHAT HAPPENS IF MY APPEAL FAILS?
7. WHERE CAN I GET HELP?
7.1 Queensland
7.2 New South Wales
7.3 Further research
ATTACHMENT A EVIDENCE TO INCLUDE
ATTACHMENT B TEMPLATE RESPONSE
ATTACHMENT C INFORMATION ABOUT THE AAT

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1. WHEN CAN MY VISA BE CANCELLED UNDER s501?

Your visa (including your permanent residence) may be cancelled if you do not pass the
character test. The factors to be considered in the cancellation decision are outlined in
Ministerial Direction No. 41 (which is provided with any Notice of Intention to Cancel) and
discussed in 2 below.
You fail the character test (defined in s 501(6) of the Migration Act 1958 and discussed in 2.1
below) if you:
(1) have a substantial criminal record see 3.1 below
(2) have an association with an individual, group or organisation which is suspected of being
involved in criminal conduct
(3) are not of good character having regard to past criminal or general conduct, or
(4) are at significant risk of engaging in future, unacceptable conduct.
If you fail the character test your visa will not automatically be cancelled, the Department of
Immigration or Minister for Immigration will consider whether to cancel your visa or not. What
factors they will consider before making this decision are discussed in 4 below.
2. WHAT IF I RECEIVE A NOTICE OF INTENTION TO CANCEL MY VISA?
Before any decision is made to cancel your visa, generally you will be given an opportunity to
state why your visa should not be cancelled (unless the Minister personally cancels your visa).
In responding you need to show:
why you pass the character test (if this is possible) see 3 below, and
if it is determined that you fail the character test, why the Minister or Departmental
officer should exercise their discretion not to cancel your visa see 4 below.
3. HOW DO I SHOW THAT I PASS THE CHARACTER TEST?
Whether you are able to pass the character test will depend on what grounds the Minister has
issued you with a Notice of Intention to Cancel your visa.
3.1 SUBSTANTIAL CRIMINAL RECORD
If you have a substantial criminal record you will not pass the character test. A substantial
criminal record means that you have been:
sentenced to a term of imprisonment for 12 months or more; or
sentenced to either death or life imprisonment; or
sentenced to two or more terms of imprisonment (whether on one or more occasions),
where the total of those terms is two years or more; or
acquitted of an offence on the grounds of either unsoundness of mind or insanity and, as a
result, you have been detained in a facility or institution.
If you have a substantial criminal record you will need to show why the Minister should not
cancel your visa, even though you do not pass the character test (see 4 below).

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NOTE: Sections 3.2-3.4 below are only relevant if you do not have a substantial criminal record. If you
have a substantial criminal record, you fail the character test and therefore must argue why your visa
should not be cancelled despite this. In this case go straight to section 4. If you do not have a
substantial criminal record but may have some other character issue, read 3.2-3.4 below.

3.2 ASSOCIATION
The Minister may decide that you do not pass the character test if you have had an association
with a person, group or organisation that the Minister reasonably believes was or is involved in
criminal conduct. In assessing this the Minister will consider:
the nature of the association eg you should provide details about whether you were
friends/family/acquaintances
the degree and frequency of the association eg were you close to this person or group,
how often did you see them and why did you see them
how long was the association, and
whether you were or are sympathetic to, supportive of or involved in the criminal conduct
eg you could get statutory declarations from relevant persons who could attest to your
lack of knowledge of the conduct or your attitude towards it, any evidence of when you
have spoken or taken action against the criminal conduct.
3.3 PAST AND PRESENT CRIMINAL OR GENERAL CONDUCT
The Minister may decide that you are not of good character on account of your past and present
criminal conduct. In considering this the Minister will look at:
the nature, severity and frequency of the offences you should provide an explanation
and evidence of the severity of the offences (eg what sentence you received compared
with the maximum available)
how long it has been since the offence was committed
your record since the offence the Minister will be concerned if there is evidence of
recidivism, ongoing criminal associations, patterns of similar offences, or blatant
disregard or contempt of the law
any circumstances surrounding your offence that could explain your conduct, and that is
evident from judges comments, parole reports or similar offences you should provide
an explanation of these eg, drug or alcohol problems that you have since addressed,
personal circumstances (eg temporary mental illness, family problems, dynamics of a
relationship that you are no longer in) and/or your age when the offence was committed
any good acts since the offence that indicate that you may have reformed for example,
treatment for drug/alcohol dependency, community services, new relationships,
counselling/treatment programs, new employment/training, and
if you have been charged with an offence in another country besides Australia, your
conduct that is the subject of those charges will be considered, to see if it impacts on your
character you should provide an explanation of the offence, its seriousness and any
extenuating circumstances.
The Minister may also decide you are not of good character on account of your past and present
general conduct. Generally this will not form the basis for a cancellation of a visa. However, in
considering this the Minister will look at:
whether you have been involved in activities that indicate contempt or disregard for the
law or human rights, which could include: terrorist activity, trafficking or possession of

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drugs, political extremism, extortion, fraud, a history of serious breaches of immigration

law, or war crimes or crimes against humanity
whether you have been removed or deported from Australia in the past, or from another
country, and
whether you have been dishonourably discharged, or discharged early from another
countrys armed forces as a result of a disciplinary action because you did something, that
in Australia would be regarded as serious.

3.4 SIGNIFICANT RISK IN REGARDS TO FUTURE CONDUCT

The Minister may decide that you do not pass the character test if there is a significant risk that
you would engage in any of the conducts referred to below if you were allowed to enter or
remain in Australia, namely you would:
engage in criminal conduct in Australia
harass, molest, intimidate or stalk another person in Australia this includes conduct that
potentially places children in danger (eg unwelcome and/or inappropriate approaches)
and conduct that would reasonably cause someone to be severely apprehensive, fearful,
alarmed or distressed regarding your behaviour towards them (or towards property), or
vilify a segment of the community, incite discord or represent a danger through
involvement in disruptive and/or violent activities this includes:
o extremist views (eg a belief in the use of violence as a means of political
expression)
o encouraging disregard for law and order (eg when addressing public rallies)
o engaging, or threatening to engage, in conduct incompatible with a multicultural
society (eg advocating political, social or religious values outside those generally
acceptable in Australia which, if adopted, might lead to discord within or between
groups)
o participating in, or promoting, politically motivated or criminal violence and
would be likely to propagate or encourage such action in Australia
o provoking civil unrest in Australia because of the combination of intended
activities, and timing with the presence of another individual, group or
organisation that holds opposing views.
The Minister must be satisfied that there is a significant risk that you would engage in the
conduct in the future. Therefore, if you have been involved in any of this conduct in the past you
would need to provide an explanation, and evidence where possible, that there is either no or
minimal/trivial risk that you would engage in this conduct in the future (eg evidence of reform
and extenuating circumstances as discussed in relation to past and present criminal conduct
above).
4. HOW DO I SHOW THAT MY VISA SHOULD NOT BE CANCELLED?
If it is determined that you do not pass the character test then you will need to persuade the
Minister that your visa should not be cancelled despite this. In deciding whether to cancel the
visa the Minister will take into account primary and other considerations, as discussed below.
These should be addressed in your response to the Notice of Intention to Cancel (see
Attachment B for a template response).

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4.1 PRIMARY CONSIDERATIONS

The Minister will consider:
o Protection of the Australian community from serious criminal or other harmful conduct
o Whether you were a minor when you began living in Australia
o The length of time you had been in Australia before engaging in criminal activity, and
o Relevant international obligations including the best interests of any children involved and
Australias obligations not to return refugees to a place where their lives or freedoms could
be threatened (called non-refoulement).
You will need to provide an explanation of each of these, as discussed below, as well as
supporting documents and evidence where available, as set out in Attachment A.
4.1.1 Protection of the Community
The first consideration that you need to argue in your favour is that your offence/s is/are not
serious enough for the Australian Government to cancel your visa in order to protect the
Australian community, and members of the community. However, if you have been convicted of
violent or sexual offences you should not try to minimise the seriousness of your offence.
Instead, it is better to focus on rehabilitation.
(a) Seriousness and nature of the offence(s)
You will need to show that the offence that you are currently in prison for is not so serious as to
warrant your visa being cancelled and that the nature of your offence is not one as to be
abhorrent to the Australian community (eg it was not an offence involving violence or against
vulnerable persons such as children, elderly or disabled persons).
In assessing the seriousness of the offences the Minister will take into account:
o the number and nature of the offences
o the period between the offences, and
o the time elapsed since the most recent offence.
You should provide:
o relevant information or evidence about you and the offences that support your claims that the
offence is not so serious as to warrant cancellation of your visa (eg judicial comments on
your case, professional psychological reports, pre-sentence reports for the courts, parole
assessments, victim impact statements)
o an explanation of, and evidence proving, any mitigating factors for the offences (eg drug or
alcohol dependence that is being addressed; age of the offender; personal factors), and
o if the offence was committed overseas, an explanation of whether it would be classified as an
offence in Australia (eg if you were imprisoned as a result of religious, political or ethnic
persecution), whether a lighter sentence would be imposed in Australia and any evidence of a
pardon.
If you do not pass the character test because of an acquittal resulting from unsoundness of mind
or insanity, you would need to provide evidence of recovery (eg mental health assessment/report
by a qualified professional), difficulties in obtaining medication and/or treatment in your home

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country if you were deported from Australia and the consequences if you fail to take your
medication where your recovery is dependent on medication.
The following are examples of offences and conduct that are considered serious by the Minister:
(a) murder, manslaughter, or any other form of unlawful killing;
(b) all offences perpetrated against a child (particularly sexually-based offences);
(c) rape and any other sexually-based offences;
(d) grievous bodily harm, reckless injury, assault and aggravated assault (including abduction);
(e) robbery;
(f) the production, possession, importation or trafficking of trafficable or commercial quantities of illicit drugs
this is not intended to cover offences related to the personal use of drugs;
(g) terrorist activity;
(h) people smuggling, trafficking and/or harbouring or concealing;
(i) ancillary offences in respect of offences and conduct that are considered serious, including:
(i) convictions for attempting to commit an offence;
(ii) convictions for conspiracy to commit an offence; and
(iii) convictions for being an accessory before or after the fact in respect of an offence.
(j) organised criminal activity resulting in a conviction in Australia or elsewhere;
(k) arson;
(l) blackmail and/or extortion; and
(m) serious theft.

(b) The risk that the conduct may be repeated

You should try to show that there is no likelihood that you will re-offend again once you are
released from prison. If you were given a suspended sentence, you will still need to show that
there is no likelihood that you will re-offend again. You should try to obtain written references
from prison counsellors who can say how you have been rehabilitated and that you are a
model prisoner.
The Minister will take into account the following factors:
o whether you have a recent history of convictions this means there is an increased risk of reoffending
o evidence of the extent of rehabilitation already achieved and the prospect of further
rehabilitation see Attachment A for suggestions about supporting evidence to prove this,
and
o any evidence that you have breached judicial orders (eg parole, bail, bonds, suspended
sentences and any other relevant undertakings or conditions imposed by the courts).
The more relevant information you can provide, the stronger your case will be. In addition to the
information and evidence referred to above, you might want to provide details about:
your criminal history including:
o details of the current offence - why it was committed and any mitigating
circumstances
o whether with hindsight you would offend again
o details of co-offender(s)
o any report of previous offences - how do you regard your criminal history?
o whether you co-operated with authorities at the time of arrest
o what your reaction was to the conviction and sentence, and
o whether there are any other charges to be dealt with
whether proceeds from money related crimes were used to support lifestyle (eg to acquire
assets, finance, travel)
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any benefits that have been derived from imprisonment (specify precisely), and
any medical/psychiatric treatment received overseas or in Australia.

4.1.2 Whether you were a minor when you began living in Australia
If you were a minor when you began living in Australia the Minister will take this into account.
You should provide evidence of your ties to Australia during the time you were a minor such as
evidence of enrolment in school or tertiary education in Australia, childhood activities (eg sports
clubs, recreational activities such as scouts, music) and friends in Australia.
4.1.3 Length of time you have been ordinarily resident
The Minister will consider how long you were resident in Australia before you became engaged
in criminal or other negative activities. Generally, a period of more than 10 years of residence in
Australia prior to engaging in criminal activity would be an important consideration for the
Minister. To show residence in Australia you should provide evidence that you had a permanent
visa and were living in Australia (eg tax records, employment, property ownership).
4.1.4 International obligations
In deciding whether to cancel your visa the Minister will take into account Australias
international obligations. In particular consideration is given to those obligations discussed
below.

The bests interests of the child (if applicable)

If relevant, you can argue as a primary consideration that cancelling your visa will not be in the
best interests of your child/children (if applicable). This only applies in relation to children who
are under 18 years of age but will be considered in relation to each child and therefore their
interests should be addressed separately.
This argument is certainly a strong argument and requires you to provide evidence that your
child/children (or any other relevant Australian children eg grandchildren, foster children,
adopted children, your partners children) will be greatly affected if your visa was cancelled. It
would be useful to obtain statements from your child/children and partner evidencing how strong
the childs/childrens relationship is to you. Please note that once your visa is cancelled on
character grounds and you are removed under s 501 Migration Act, you will never be allowed to
re-enter Australia again.
The following information would assist to show that in the best interests of the child, your visa
should not be cancelled:
details of you marital status (including date and place of marriage/divorce/separation)
names, dates and place of birth and address of:
o spouse/de facto spouse/partner
o fiance(e)
o children
the immigration status of the child (eg Australian citizen or permanent resident)
the nature of the relationship between the child and you
whether there are any other persons who play a parental role with the child
whether your prior conduct has had a positive or negative effect on the child
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details of children's schooling

details of what rights and obligations you have in relation to the child, including any
court orders
the duration of the relationship including the number and length of any separations and
reason/s for the separation; the hypothetical prospect for developing a better/stronger
relationship in future (whether or not there has been significant recent contact) would
normally be given relatively less weight than the proven history of the relationship based
on past conduct;
the age of the child;
the likely effect that any separation from you would have on the child;
the time (if any) that the child has spent in Australia
details of children's involvement in community activities
details of participation in activities relating to own children
degree of contact with spouse and children prior to sentence
degree of contact with spouse and children during sentence (e.g.: visits, letters)
the circumstances of the probable receiving country, including the educational facilities
and the standard of the health support system of the country to which the child may have
to go, or return to, should you not be permitted to enter or remain in Australia
any language barriers for the child in the probable country of future residence, but taking
into account the relative ease with which younger children acquire new languages
any cultural barriers for the child in the probable country of future residence, but taking
into account the relative ease with which younger children adapt to new circumstances
if divorced or separated, what are custody arrangements for the child
psychological reports about the likely impact on your child
a statement from your partner about his or her intention about your relationship, and
statements from your family setting out:
their status in Australia
their relationship to you
details of what they know of your relationship to the child, and
what they believe the likely impact would be on the child if you had to leave
Australia.
Convention and the Protocol relating to the status of refugees

If you have any issues of protection under the Refugees Convention then you should raise these.
Under the Refugees Convention a refugee is a person who:
owing to a well founded fear of being persecuted for reasons of race, religion,
nationality, membership of a particular social group or political opinion, is outside the
country of his nationality and is unable, or owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having a nationality and being
outside the country of his or her habitual residence, is unable, or, owing to such fear, is
unwilling to return to it.
(Article 1A(2) of the Refugees Convention)

If you have any protection claims you should include:

a detailed statement of why you fall within the definition of a refugee as set out above
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any supporting evidence of your claims, and

any country reports that support your claims.

Non-refoulement obligations

Australia must not return a person to their country of origin if:

they would face a real risk of violation of his or her rights under Article 6 (right to life),
Article 7 (freedom from torture and cruel, inhuman or degrading treatment or
punishment) or face the death penalty (no matter whether it is lawfully imposed)
(International Covenant on Civil and Political Rights ICCPR)
there are substantial grounds for believing that they would be in danger of being
subjected to torture (Convention Against Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment CAT). Torture is defined in the CAT as:
any act by which severe pain or suffering, whether physical or mental, is intentionally
inflicted on a person for such purposes as obtaining from him or a third person
information or a confession, punishing him for an act he or a third person has committed
or is suspected of having committed, or intimidating or coercing him or a third person, or
for any reason based on discrimination of any kind, when such pain or suffering is
inflicted by or at the instigation of or with the consent or acquiescence of a public official
or other person acting in an official capacity. It does not include pain or suffering arising
only from, inherent in or incidental to lawful sanctions.

Therefore if you think that you may or will be subject to any of these you should provide a
detailed explanation and appropriate supporting evidence (if possible) of your claims.
4.2 OTHER CONSIDERATIONS (NON-PRIMARY CONSIDERATIONS)
The Minister will also consider other issues, although not as primary considerations. You should
submit anything that you think is relevant to whether your visa should be cancelled or not. In
particular you may want to include details of:
your addresses in Australia (in chronological order, do not leave gaps include
address/type of accommodation/how you found it/period of residence)
your ties in Australia, including:
o a genuine marital (including de jure or de facto) relationship with an Australian
citizen, permanent resident or eligible New Zealand citizen including the nature
and duration of the relationship; the degree to which the partner is financially,
physically or psychologically dependent on you; (if applicable) the impact of
separation resulting from your removal from Australia; and whether, at the time of
entering into or establishing the relationship, the partner knew that you were of
character concern
o any previous long standing relationships - names of partner(s), length of
relationships
o details of your family composition (names and addresses), including parents,
siblings, partners and children
o degree of contact with family members prior to sentence.
o degree of contact with family members during sentence (e.g.; visits, letters)
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o any other relatives in Australia (names, relationship and addresses)

o details of any particular friends or relatives with whom there is a close
relationship
o the nature and extent of any relationships, and
o the extent of disruption to your family, business and other ties to the Australian
community
your age: for example, if you are elderly and would be unable to access services such as
aged care and income support in the country to which you would be returned; where you
are living with, or under the care and control of, a parental or care figure, the negative
impact that cancellation may have on you
your health if you have a health condition information should be obtained from an
appropriately qualified professional that outlines: the nature and extent of the health
condition and the extent to which it affects you; whether you require any form of care or
assistance; whether the condition is degenerative or if you will recover; and whether you
would have appropriate access to necessary medication or medical treatment if you were
removed from Australia, noting the impact including the hardship you would face if this
was not available to you
any disability that may impair, or has impaired, your ability to advocate on your own
behalf
any links to the country to which you would be removed - for example, that you have no
significant familial ties or support in that country or limited knowledge of that countrys
language
any hardship likely to be experienced by you or your immediate family members lawfully
resident in Australia including whether family members can travel overseas to visit you,
the nature of the relationship; and whether immediate family members are in some way
dependent on you for support which cannot be obtained elsewhere;
your ability, together with any accompanying family members, to acquire new language
skills and your capacity to obtain support;
your level of education (eg your inability, due to a lack of education, to advocate on your
behalf or on behalf of any relevant persons who may be adversely affected by a visa
cancellation decision) and any efforts made by you to improve your education (including
details of your educational qualifications both in Australia and overseas)
any qualifications, skills and experience from Australia or overseas (including details of
courses)
your employment status and history provide a chronology of your employment history
without gaps (provide name of employer, position, period of employment, reason for
leaving) if there are periods of unemployment give reasons and the steps taken to find
employment
any Centrelink benefits paid including the period they were received
any assets, savings or investments in Australia and overseas
your plans after release (including accommodation and employment and details of
persons able to assist in resettlement), and
your hobbies or interests (any community involvement)
attempts to acquire knowledge of English language or Australian citizenship
relevant information about your former country of residence, including how long you
lived there for and any difficulties you had there, and

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whether you have been formally advised in the past by an officer of the Department of
Immigration and Citizenship about conduct that brought you within the deportation or
character provisions of the Act.

5. IF MY VISA IS CANCELLED CAN I APPEAL THE DECISION?

5.1 ADMINISTRATIVE APPEALS TRIBUNAL (AAT)
If an authorised officer of the Department of Immigration makes a decision to cancel your visa,
then you can apply for review of that cancellation decision at the AAT. The AAT will review the
merits of the decision already made by the Department. All the circumstances surrounding your
case will be looked at to see whether the original cancellation decision was the correct decision.
Therefore at the AAT you need to argue the same points and collect the same evidence as set out
in Parts 3 and 4 above.
You have only 9 days after the day of notification of cancellation to apply for review to the
AAT. This time limit is strict although there is a right to apply to have an application for review
heard out of time if the applicant can show that the cancellation notice from DIAC was defective.
Also, if you have proof that you did not receive the cancellation notice at the relevant time, then
you should apply for review anyway arguing the reason why it is lodged out of time. The AAT
will decide if it has jurisdiction to hear the application. Please note that if the 9th day after
notification is a Saturday, Sunday or Public Holiday, you can lodge an application on the next
working day.
See Attachment C for further information about the AAT.
5.2 FEDERAL COURT
If the Minister of Immigration personally cancels your visa (and this will be stated on any letter
that informs you that your visa has been cancelled) then you have no right of review to the AAT.
In this instance you will only have limited rights to appeal to the Federal Court of Australia. You
have only 35 days after you are actually notified of the decision to lodge your appeal to the
Federal Court of Australia.
If you did have a right to go to the AAT and your case failed, then you may be able to appeal to
the Federal Court but must do so within 35 days of being notified of the AAT refusal. There are
limited grounds to appeal to the federal court and cases should not be appealed to that
court where there are no legal grounds to do so (example: jurisdictional error or
procedural unfairness).
6. WHAT HAPPENS IF MY APPEAL FAILS?
Cancellation of a visa under ss501, 501A or 501B of the Migration Act has the following effects:
once you leave Australia you will be permanently excluded from Australia (this does not
apply to cancellation decisions made while you are outside Australia)
any undecided visa applications made by you are taken to have been refused
any other visas held by you are taken to have been cancelled
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 you will be liable for your deportation costs, including:

the costs of moving prior to removal or deportation from Australia;
the daily maintenance costs of your detention; and
fares and other costs associated with transporting you from Australia
if your spouse and/or children are also removed or deported you will be liable for their
removal or deportation costs
if you have an airline ticket, this may be used towards your removal or deportation with or
without your consent, and
any valuables belonging to you may potentially be used to pay for your departure.
7. WHERE CAN I GET HELP?
7.1

QUEENSLAND

QPILCH
QPILCH may be able to refer your case for pro bono assistance:
Postal:
GPO Box 1543, BRISBANE QLD 4001
Telephone:
(07) 3012 9773
Facsimile:
(07) 3012 9774
E-mail:
contact@qpilch.org.au
RAILS
RAILS can only provide advice and limited assistance on such matters and does not have the
resources to represent applicants at the AAT or at the Federal Court:
Postal:
PO Box 5143, West End QLD 4101
Telephone:
(07) 3846 3189
Facsimile:
(07) 3844 3073
AAT
To contact the AAT (and to contact Legal Aid Solicitor (Administrative Legal Clinic)):
Postal:
Commonwealth Law Courts Building (Level 6), North Quay, Brisbane
Telephone:
(07) 3361 3058
Facsimile:
(07) 3361 3001
7.2

NEW SOUTH WALES

LEGAL AID
Legal Aid may be able to provide advice or assistance in relation to your matter, including
Federal Court appeals:
Postal:
Ground Floor, 323 Castlereagh Street, Sydney NSW 2000
Telephone:
(02) 9219 5000
Fax:
(02) 9219 5935
IARC
IARC can only provide advice and limited assistance on such matters and does not have the
resources to represent applicants at the AAT or at the Federal Court:
Postal:
Level 5, 362 Kent Street, Sydney NSW 2000
Telephone:
(02) 9279 4300
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Facsimile:

(02) 9299 8467

AAT
To contact the AAT:
Postal:
GPO Box 9955 Sydney NSW 2001
Telephone:
(02) 9391 2400 (metropolitan area) or 1300 366 700 (country areas)
Fax:
(02) 9283 4881
7.3
FURTHER RESEARCH
You can research for cases heard by the Federal Court or AAT that may be similar to your own at
http://www.austlii.edu.au/au/cth.

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Attachment A: Evidence to include

You should attach evidence to your response supporting the information you provide to the
Department of Immigration. Such evidence could include:
Evidence of rehabilitation
Sentencing reports which include positive information such as mitigating circumstances,
positive comments on the likelihood of re-offending or the seriousness of the offence.
Parole reports (including a separate reference from the parole officer).
Probation reports.
Psychiatric assessment indicating the risk of you re-offending.
Written references from prison counsellors who can say how you have been rehabilitated
and that you are a model prisoner.
References from prison officers.
Evidence of any work you have done in prison and reports related to it.
Reference from the prison chaplain.
Documentation supporting your prospects of rehabilitation.
Details of any medical/psychiatric treatment received overseas or in Australia (obtain written
consent to obtain information if necessary), including any drug or alcohol rehabilitation.
Evidence of ties and contribution to the community
Statements from your family and friends, especially anyone dependent on you.
Statement from your partner about his or her intention about your relationship.
Statements from friends who are Australian citizens or permanent residents.
Evidence of any courses you have completed or attended.
References from employers.
Evidence of any guarantee of future work.
Statement from a leader of a community group.
Evidence of any offices held in community or public affairs.
Evidence of membership of Trade Union, Professional Associations etc.
Evidence of membership of social clubs or church groups (give precise details of extent).
Evidence of any significant contribution to the community (material, financial, cultural,
political, religious, community services, etc.).
Evidence of educational qualifications.
Evidence of trade qualifications, skills and experience (details of courses).
Evidence of employment prior to arrival.
Evidence of assets in Australia and overseas (savings, goods and effects, business interests).
Evidence of investments in land, real estate etc.
Evidence of enrolment to vote (British only) (nominate electorate, subdivision etc).
Evidence of attempts to acquire knowledge of English language.
Evidence of attempts to gain Australian citizenship.
Any other evidence of your ties with and contribution to the community.
Evidence of attendance at school or tertiary education in Australia.
Evidence of any childhood activities in Australia (eg sports clubs, recreational activities,
music).
Evidence of how long you have been in Australia (eg tax records, employment, property
ownership).

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Evidence of your family in Australia

Birth certificates for all of your children.
Citizenship certificates for all family members who are Australian citizens.
Evidence of permanent residence for all family members who are Australian permanent
residents.
Evidence of any court orders in relation to your children in Australia.
Evidence of your childrens schooling in Australia.
Evidence of the circumstances for your children in the country you would have to return to
(eg international reports, letters from experts, newspaper articles).
Any psychological reports of the impact on your children or other dependent family
members.
Evidence of humanitarian issues
Information about life in your country of citizenship (for example country reports), relevant
human rights issues and standards, especially if originally you came to Australia as a refugee.
Evidence of lack of medical facilities/treatment/medication for any medical conditions you
have.
Evidence of any disability that affects your ability to advocate on your own behalf.

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Attachment B: Template response

By Registered Post
[Date]
[Case Officers name]
[Case officers section]
Compliance
Department of Immigration and Citizenship
[Address]
Dear Mr /Ms
Re:

[NAME] (DOB: .)
Notice of Intention to Cancel under s501(2)
File reference: .

I received a Notice of Intention to Cancel dated ... My response is set out

below.
[If you have a substantial criminal record insert the following text:]
I acknowledge that I do not pass the character test as set out in s501(6) of the Migration
Act 1958. However, I understand that cancellation is discretionary and I
provide the following information in support of the proposition that my visa should not be
cancelled.
[If you do not have a substantial criminal record you should set out why you pass the
character test in light of:
- your associations as discussed in section 3.2 of this legal kit
- your past and present criminal or general conduct as discussed in section 3.3 of this
legal kit, and
- whether there is a significant risk that you would engage in conduct as discussed in
section 3.4 of this legal kit.
Then include the following text:]
If you do not accept that I pass the character test, I would like to provide the following
information in support of the proposition that my visa should not be cancelled under the
discretionary provisions.
PRIMARY CONSIDERATIONS
1. The protection of the Australian community from serious criminal and other
harmful conduct
(a) The seriousness and nature of the offences
It is acknowledged that I committed offences of a serious nature in [insert year], namely
[insert details of the offence(s)]. However, I respectfully submit that the offence is not
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one that is abhorrent to the Australian community, taking into account the factors set
out below.
I would like you to take into account the mitigating factors relating to the offences as set
out below.
Set out details of any mitigating circumstances (eg drug or alcohol dependence that is
being/has been addressed; your age at the time of the offence; mental health issues;
your personal situation at that time). Include quotes from any documents referring to
these mitigating circumstances and how they no longer apply.
I would also ask that the information below be taken into account.
Include a statement about your remorse for the offence(s); details about the time that
has lapsed since the most recent offence; details of the period between offences.
If the offence is not one that is listed in those considered serious by the Minister (see
4.1.1(a) of this legal kit), you should point this out. If the offence did not involve any
vulnerable persons such as children, elderly or disabled persons, this should be pointed
out. Include quotes from any documents that discuss the nature and seriousness of the
offence in a positive light.
(c) The likelihood that the conduct may be repeated
If given a chance to remain in Australia, I will not repeat the mistakes of my past. As
supported by the information below, I have learnt from my mistakes and am now in a
different position to that which I was in before. Therefore there is no significant risk that
the conduct will be repeated.
(b.1) Rehabilitation
Include a statement about what rehabilitation you have achieved and the prospect of
any further rehabilitation. Include quotes from any documents which refer positively to
your rehabilitation.
(b.2) Family and community support
Set out details of any family and community support that will assist to prevent you from
repeating the previous conduct, including who you will live with, how you will support
yourself.
(b.3) Prison conduct
Include a statement about any positive prison conduct, including any training,
employment or education that you undertook and quoting from any documents that
refer positively to your conduct in prison.
(b.4) Possibility of visa cancellation

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Include a statement about the affect that the possibility of your visa being cancelled has
had on you and how it may impact on your future behaviour.
(b.5) Contribution to community
Include a statement about how you think you could contribute positively to the
community in the future.
2. Age when I arrived in Australia
If you arrived in Australia as a minor, include a statement about how old you were when
you arrived, what schooling you had in Australia, what activities you did in Australia as a
child, what friends you had in Australia, how you feel about Australia (eg whether you
consider yourself to be Australian and whether you consider this to be your home).
3. Length of time I have been resident in Australia
Include a statement about the length of time that you have been in Australia.
4. Australias international obligations
4.1. The best interests of the child or children
I have children in Australia.
Name

Status in Australia

Age

Include details of any other children in Australia who would be impacted by you having
to leave Australia eg foster children, grandchildren, adopted children, children with
whom you have a parental relationship.
Include details of how it would impact on each child if you had to leave Australia,
including whether they would go with you and the impact of this (eg what access they
would have to education/health care in the other country; whether they speak the local
language; what cultural difficulties they would have).
Include details of any rights or obligations you have in relation to each child, what
contact you have with them, what role you plan to play in their lives in the future,
4.2. Convention and Protocol relating to the status of refugees
If you have any refugee claims, include a detailed statement of what these are, quoting
from any supporting documents.
4.3. Non-refoulement obligations

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If you would face a risk of violation of your rights, torture, cruel, inhuman or degrading
treatment or the death penalty if returned to the other country set out details of this.
OTHER RELEVANT CONSIDERATIONS
5. Relationship
Set out details of any relationship (eg marital or de facto) with an Australian citizen,
permanent resident or eligible New Zealand citizen, including the nature and duration of
the relationship, degree to which they are financially, physically or psychologically
dependent on you, the impact of separation from you, whether they could accompany
you overseas.
6. My family
The following table summarizes my family members living in Australia who would be
directly affected if I had to leave Australia.
Name

Relationship

Status in Australia

Age

Give details of how they will be affected, including whether they are able to travel
overseas to visit you, the nature of the relationship between you and the immediate
family members, whether immediate family members are in some way dependant on
you for support which cannot be provided elsewhere, degree of contact before and
during sentence .
7. Rehabilitation and recent good conduct
Set out details of any rehabilitation and recent good conduct that would support your
assertion that you are of good character and can contribute to society.
8. Disruption to my business and other ties to the Australian community
Set out details of your ties to the Australian community, including your employment
(especially if your employer is reliant on you), any assets, savings or investments in
Australia, involvement in any community organisations or activities.
9. Compassionate circumstances
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Refer to any other compassionate circumstances such as your age, medical conditions,
health, people dependent on you.
10. Links to [name of country to which you would return]
You should set out details of what links you have to your country to which you would
return, including:
o whether you have family or friends there
o whether you speak the language
o how long you lived there previously
o any difficulties you had there
11. Previous warnings
If you have been formally advised in the past by an officer of DIAC about conduct which
brought you within the deportation provisions at section 200/201 of the Act or the visa
refusal and cancellation provisions at section 501, you will need to provide an
explanation of why you did not heed the warning.
If you have not be warned previously you should point this out.
Conclusion

Yours sincerely,

[NAME]
Attachments
1.
2.
3.
4.
5.

Statutory declaration by , dated

Certified copy of the Australian birth certificate of
Letters of support from ..
Letter of support from ..

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Attachment C: Information about the AAT

Contact details AAT Sydney
Monday to Friday 8.30 a.m. to 5.00 p.m.
Street Address: Level 7, City Centre Tower, 55 Market Street, Sydney NSW 2000
Postal Address: GPO Box 9955, Sydney NSW 2001
Telephone: (02) 9391 2400 (metropolitan area); 1300 366 700 (country areas)
Fax: (02) 9283 4881
www.aat.gov.au
Contact details AAT Brisbane
Monday to Friday 8.30 a.m. to 5.00 p.m.
Street Address: Level 4, Harry Gibbs Building, Commonwealth Law Courts, 119 North Quay,
Brisbane QLD 4000
Postal Address: GPO Box 9955, Brisbane QLD 4001
Telephone: (07) 3361 3000 (metropolitan area); 1300 366 700 (country areas)
Fax: (07) 3361 3001
www.aat.gov.au
Do I need a lawyer?
The AAT is an adversarial tribunal. It is difficult to succeed in an appeal at the AAT. You should
seek expert advice in relation to your specific matter. See 4 below for contact details of where to
get assistance. If you do not have a lawyer, you should also contact the AAT directly as they can
provide information and assistance to unrepresented applicants.
How do I lodge my appeal?
To appeal to the AAT you need to lodge the application form (Form 1 available at
www.aat.gov.au/FormsAndFees/Forms.htm) in person, by mail or by fax together with the
application fee which is $682 unless:
you are in prison or in immigration detention;
you hold a card issued by the Department of Family and Community Services or the
Department of Veterans' Affairs that certifies entitlement to Commonwealth health
concession;
you have been granted legal aid; or
the AAT waives payment of the fee because it would cause financial hardship if you had
to pay the fee.
An application for review must be accompanied by, or by a copy of, the following documents:
the notice under s501G(1) of the Migration Act notifying you of the decision; and
one of the sets of documents given to you at the time you were notified of the decision.
What is the process once I lodge my appeal?
The AAT will send a letter acknowledging receipt of the application within 2 working days of
lodgement and will hold a Telephone Directions Hearing approximately 3 weeks after receiving
the application. The Tribunal Member will call you and an officer of the Department of
Immigration at a designated time. An interpreter will be used if required.

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The purpose of the Telephone Directions Hearing is to allow the AAT and the parties to discuss
the issues in the application, to explore prospects for settlement and to plan the further progress
of the application. It is important that you have with you the set of documents that the
Department gave to the applicant when the applicant was notified of the decision. The Member
of the AAT will talk about what is in these documents.
The following issues may be raised at the Telephone Directions Hearing:
the adequacy of the material before the AAT and any further information the AAT may
require to consider the merits of the case;
any further information the parties intend to provide to the AAT;
whether the AAT will hold a Hearing or determine the application on the papers;
the effect of the provisions of the Migration Act that require disclosure of material that
supports the applicant's case before a Hearing;
the witnesses each party intends to call at a Hearing;
any requests to have the evidence of a witness taken by telephone or video;
any requests for a confidentiality order under section 35 of the Administrative Appeals
Tribunal Act 1975; and
the date by which the AAT must give its decision.
Any directions that the Member makes at the Telephone Directions Hearing will be recorded in
writing and a copy will be provided to each party. If necessary, the Member may list a further
Telephone Directions Hearing. Following the Telephone Directions Hearing, a Hearing may be
held.
Will there be a hearing?
The hearing will take place on the day and at the time set out in the letter sent acknowledging
receipt of the application. The Migration Act contains special rules relating to the disclosure of
material that supports an applicant's case prior to any Hearing. You must follow these rules if you
want the AAT to take this material into account when it makes its decision.
Oral evidence
The AAT cannot have regard to any information presented orally in support of the
applicant's case unless the information was set out in a written statement and given to the
Minister at least 2 business days before the AAT holds a Hearing: section 500(6H) of the
Migration Act 1958.
Documents
The AAT cannot have regard to any document submitted in support of the applicant's case
unless a copy of the document was given to the Minister at least 2 business days before
the AAT holds a Hearing: section 500(6J) of the Migration Act 1958.
You can fax any written statements or documents to the Director of Litigation, Department of
Immigration and Citizenship on (02) 6264 1401. Alternatively, you can send the documents to
the following address:
Director of Litigation
Legal Branch
DIAC
PO Box 25
BELCONNEN ACT 2616
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Please fax or send copies of anything you send to the Department to the AAT.
When will I get a decision?
A strict time limit applies to the finalisation of an application for review of a decision under
section 501 of the Migration Act 1958. 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 the AAT will be
taken to have affirmed the decision under review.
The AAT will give its decision either at the end of the Hearing or reserve its decision and publish
it at a later date. If the AAT reserves its decision, the AAT will contact you when the decision is
ready. You can come and collect the decision or the AAT will send it to you.
The AAT's decision is a public document once it has been published. If you have concerns about
any of the information that may appear in the reasons for decision being publicly available, you
can request under section 35 of the Administrative Appeals Tribunal Act 1975 that the AAT
prohibit or restrict publication of:
the name of the applicant or any witnesses; or
evidence given before the AAT or matters contained in documents lodged with, or
received in evidence by, the AAT.
The AAT will make such a direction if it considers there are good reasons for doing so. Any
request for such a direction under section 35 should be made at the Hearing.

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