Visa Mandatorily Cancelled Under Section 501 (Character Issues) Gets Another Chance To Request Revocation

Your visa has been mandatorily cancelled under section 501(3A) of the Migration Act 1954 and it’s past the 28 days you were given to request a revocation. Can you get another chance to have those 28 days back?

The Applicant didn’t respond to the Notice of Cancellation in time.

The Applicant was a 33-year old man who had arrived in Australia when he was 5 months old. He had a long criminal record and was issued with a Notice of Cancellation on 7 November 2018 after being sentenced to 12 months imprisonment.

The revocation request was not sent to the Department of Home Affairs until 27 December 2018, when he was already out of time to respond. However, the Minister made a decision to keep the cancellation anyway.

When appealed to the Administrative Appeals Tribunal (“AAT”), the Minister claimed that the AAT did not have the power to revoke the cancellation decision because the Applicant had made the request to revoke outside of the prescribed period.

This case was eventually appealed to the Full Court of the Federal Court of Australia.

Representations must be made within 28 days.

Regulation 2.52(2) of the Migration Regulations 1994 states that for revocations requests of mandatory character cancellations, “the representations must be made… within 28 days after the person is given the notice…”

How do I revoke my visa cancellation after 28 days?

The Full Court eventually found that the Applicant was entitled to be re-issued the Notification of Cancellation and therefore got another chance to request for the revocation of his visa, even though his 28 days was up.

In reaching this decision the Court considered the following two cases:

1. EFX17: The court found in this case that where an invitation is sent to make representations within a certain prescribed period, the invitation needs to “crystallise” that period by either stating the period expressly or by reference to objective facts from which the period could be ascertained. A failure to do so is more than a mere failure in procedure as it would be unreasonable to expect that a person is expected to make representations by a certain date isn’t given that information.

2. Stewart: In interpreting regulation 2.52(2) of the Migration Regulations 1994, the term “made'“ does not refer to “received” but to “dispatched”. In other words, the revocation request only needs to be dispatched by the Applicant within 28 days, not received by the Department within 28 days.

The Applicant’s Notice of Cancellation had the following defect:

“If you make representations about the revocation of the visa cancellation decision but the representations are received outside the prescribed timeframe of 28 days, the Minister or his/her delegate is not able to consider the representations because they would not have been made in accordance with the invitation, as required by section 501CA(4)(a) of the Act.”

In other words, the Applicant was informed that his representations had to be received by the Minister within the 28 day period. On the reading of regulation 2.52(2) present in Stewart, the invitation had incorrectly fixed the time in which the Applicant had to respond. Following EFX17, this error on the invitation made the invitation invalid.

How Can Agape Henry Crux Help You.

Your Notice of Cancellation may be affected by the same error. If you made representations outside of time or your response time has passed without representations being made, now is the time to seek re-notification.

If you want to find out more about your eligibility or need advice on your Australian migration matter, please do not hesitate to contact us. You can book a Migration Planning Session with one of our immigration lawyers to seek professional advice by calling 02-7200 2700 or email us to book in a time at info@ahclawyers.com.

We speak fluent English, Korean, Mandarin, Cantonese, Indonesian, Burmese and Malay. If these aren’t your language, we can also help you arrange an interpreter.

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