Appeals & Reviews
Appeals / Tribunals
They ask you for your views on your application why they should outcome should be in your favor
The Department of Home Affairs (DHA) will send you this notice and other documents such as criminal records. DHA will ask you to comment on the information. DHA prepares an analysis report. This includes any information DHA receives from you and others. The problem document is passed on to the decision maker. You must send the DHA a letter explaining why you think your visa should not be revoked. A decision maker will review the white paper to decide whether to cancel or notify the visa. DHA will send you a letter of its decision. You will receive a visa cancellation letter or warning letter. . If your visa is not revoked and only a warning is given, it may be revoked later if you are convicted of another crime. If your visa is revoked, you may appeal to the Court of Administrative Appeals (AAT).
- Key considerations that DHA should take into account are as follows:
- The protection of the Australian community includes:
- The seriousness and nature of the offense(s); and
- Risk of recurrence.
- That you came to Australia as a child.
- The length of time you lived in Australia before committing the offence.
- Australia’s human rights obligations
They are discussed in more detail below:
1 (a) Severity and nature of the violation(s)
DHA will have your criminal record, so it knows the types and amount of crimes you have committed. However, they won’t know what was going on in your life at the time you committed the offence, so this is your opportunity to explain your criminal background(s). Here are some things you can mention here:
- what kind of crime have you committed.
- the sentence(s) you receive.
- the time elapsed between each violation.
- how much time has passed since your last offense.
- whether your offense is on the list of “serious crimes” in department directive 41
DHA will review any information (or mitigating factors) that provides details as to why you are in violation. This includes information about what is going on in your life at the time.
- “Mitigating factors” are things that can create or help explain an offense, and may include: drug or alcohol addiction at the time of the offence;
- your age at the time of the offence;
- circumstances in your family or childhood environment, for example a history of violence or abuse against you;
- other personal circumstances, such as losing your job, you are having trouble with your family, with your husband/wife or with your children.
It is important to show that you understand the seriousness of the offense, including the consequences for the victim(s).
1 (b) Risk of recurrence
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 types of information you can use to support your answer are:
- Evidence of drug/alcohol training, anger management courses, or training received since the last offense whether significant time has elapsed since your last offense and whether you have lived in the community during that period;
- has never violated a court order (e.g., bail, parole, or bail), or the last violation occurred long ago;
- Either the correctional center’s rules have never been violated, or the last violation occurred a long time ago.
- Positive comments about your rehabilitation by a judge, magistrate, or other professional (such as a psychologist or parole officer)
- Information about the people in the community who can support you and help prevent further abuse, who they are, how you will get to know them, and how you will help them.
- Examples of how you have helped the community, including friends, family, church, sports club, or others in the community (eg volunteering, training a sports team, caring for someone in need).
DHA does not need to cancel your visa if you fail the temperament test. DHA will consider factors such as the risk of harm to Australian society if you stay in Australia and the consequences for you and your family if you have to leave Australia.
The policy used by the DHA to determine whether or not to cancel a visa is set out in a document called Ministerial Regulation 41. A copy of this document will be provided to you with notice.
It contains detailed guidance on what DHA may consider when considering visa revocation. These are called “primary considerations” (which DHA must consider) and “secondary considerations” (which DHA may consider).
This category can provide information about how long you have lived in Australia and when you arrived. This is important if you came to Australia when you were under the age of 18 and spent your so-called “formal period” in Australia. Your “year of formation” is typically between the ages of 8 and 15. You can provide the following details:
- Age at the beginning of living in Australia; that you grew up and attended school in Australia.
- You have never returned to your home country.
It is important to point this out if you have been living in Australia for a long time. Please include:
You have lived in Australia for more than 10 years; the length of time you were in Australia before committing the crime;
how many family members live in Australia and how close they are;
you have a partner in Australia and Australian citizen.
Australia has agreed to satisfy positive human rights requirements with the aid of using signing some of files referred to as International Conventions. These encompass the Convention at 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 bear in mind whether or not cancellation of your visa might breach any of those Conventions.
- A very essential worldwide responsibility is contained withinside the Convention at the Rights of the Child (CROC).
- DHA have to bear in mind whether or not any kids (much less than 18 years old) might be affected in case you had been eliminated from Australia.
- This consists of your very own kids or different kids you’ve got got taken care of or are near and can encompass nephews and nieces, or maybe your brothers and sisters.
- DHA have to recollect concepts together with the rights of kids to develop up with their own circle of relatives and to have a courting with their dad and mom and different carers. This is called identifying what’s withinside the great pastimes of the child.
- The types of facts you could offer encompass: whether or not you’ve got got kids in Australia and their ages; whether or not they’re Australian citizens.
- what courting you’ve got got with the ones kids – parent, guardian, carer, aunt/uncle.
- how near the connection is (What type of care have you ever given to the kids Did you stay with them earlier than you went to prison? How regularly do you spot them now).
- how your kids might be affected in case you had been despatched farfar from Australia (What might show up to them in the event that they had been separated from you.
- Would they be capable of go along with you and begin a brand new lifestyles in any other country.
- How might this influence them – might they recognise the language, might they be capable of visit school, get fitness care etc.).
(b) Refugee Status Claim
- Another international obligation that DHA must consider is whether there is a risk of persecution, torture or other cruel, inhuman or degrading treatment upon repatriation. This is especially important if you are visiting Australia as a refugee.
- You must provide information about: entering Australia on a refugee visa;
fear that you will be harmed if you have to return to your country of origin, including who will harm you; and Fear of being killed, seriously harmed, or otherwise ill-treated if forced to return to their home country
Minor considerations the DHA may consider:
- Australia and Family Relations
- your age and health
- Links to country of origin
- Difficulties in yourself or your family
- your level of education
- DHA warnings received in the past.
Incidentally, we can provide you with information about the challenges you may face if you need to travel from Australia to your country of origin. You can also talk about how this will affect your family.
The types of information you may provide are:
- Whether you will receive support from family or friends in your country of origin;
- Whether you can get social security, health care, or education
- Any health problems that may be affected if you have to leave Australia – what treatment or services you need and are available in your country of origin;
- whether you can get the help you need, including whether you can communicate with people or speak the language; and
- Can you read and write in English and the language/language of your country of origin?
You can encompass statistics approximately how your elimination from Australia may have an effect on the human beings you’re near in Australia, particularly if all and sundry in Australia is based on you for anything (for example, cash or sensible assist). You also can encompass any hyperlinks you need to the Australian network or a specific network group. Examples of this sort of statistics you may encompass are:
- whether or not you’ve got got a wife, husband or de facto or girlfriend/boyfriend in Australia, together with whether or not she or he is an Australian citizen;
- any obligation you need to take care of an Australian citizen (consisting of a child, a parent, a person with a disability);
- whether or not you guide all and sundry financially in Australia and why;
- in case your own circle of relatives contributors might should go away Australia with you, the problems they might face to settle for your u . s . of origin;
examples of assist or paintings you’ve got got executed withinside the network consisting of for any network agencies or volunteer paintings like training a sports activities team.
Independent evidence is information from another person or source that supports your statement. Include independent evidence whenever possible.
Includes documents such as reports from doctors or psychologists, parole and parole reports, and other correspondence or reports from qualified persons. Gather support letters from as many people as possible, including friends and family, employers, and community leaders.
If someone tells you that you have a good personality, he should also say that they know your criminal record. Other support letters may come from people who will help you out (by providing work or housing) when you get out of jail.
If you are not sure how long it will take to respond to your notice of intent to cancel your visa, you can call the National Character Review Center (NCCC) and they will tell you. I have a phone number.
If you can’t reply within the given time, please ask for more time. To do this, contact the NCCC. Don’t wait until the last minute. You must request additional time as soon as you realize you need it.
Even if you send information after the deadline, the DHA must consider the information if it has not yet made a decision. This means that if the time allotted to respond to the notice has expired and the DHA refuses to provide you with additional time, you can still send the information, and we hope to receive the information before DHA makes a decision. However, you should always try to provide all information within the allotted time.
Occasionally, the DHA will find out more about you after sending 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.
calculate time limit
To calculate the deadline for responding to a Notice of Intent to Consider Cancellation, look at the date on the last page of the notice and add 7 business days if it was sent to you. Then add 28 more days (including weekends). If the notice was sent to you by fax or email, add 28 days (including weekends) from the date indicated on the letter (not the date of receipt if not on the same day). See 5. Timeline Calculation for an example of how to determine the time frame for responding to a notice of intent to cancel.
Waiting for decision
The best way to find out about your visa status after submitting an answer to the DHA is to contact the National Character Review Center (NCCC). You may also give others permission to speak to the NCCC on your behalf (“authority”). You don’t have to be a lawyer to do this.
If you are released from custody before receiving a decision, you should contact the NCCC with your new mailing address and phone number. Otherwise, we may not be able to see you to notify you of the decision and you may lose your right to appeal the decision if your visa is revoked.