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Visa cancellation kit

4. My visa has been cancelled - what can I do?

Applying to the Administrative Appeals Tribunal (AAT)
Calculating the time limit
Going to the AAT

Applying to the Administrative Appeals Tribunal (AAT) to review the decision

If your visa has been cancelled by DIAC, you can apply for a review of the decision at the AAT. There are very strict time limits. You must apply for review within 9 days. To work out the exact date you must apply to the AAT see Calculating time limits section below. For an example of how to calculate the time limits see 5. Working out time limits.

The steps you will need to take are:

1. Complete an Application for Review of Decision Form. You can ask the AAT to send you this form. You can send it to the AAT by post or fax.

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2. Prepare your documents. It is best to send with your Application to the AAT a copy of:

  1. the Notice of Visa Cancellation; and
  2. all of the other documents that DIAC sent you with your Notice of Visa Cancellation.

It is important that you keep copies of everything you send to the AAT.

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3. Pay the application fee of $100 – by cheque, money order or credit card. You can send the Application Form to the AAT and ask a friend or family member to pay the fee for you. All they need to do is ring the AAT with their details. If you do not pay the fee the application to the AAT will not be valid.

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4. Seek legal advice or assistance. It is possible to represent yourself at the AAT, but you can try to get some helpful tips from a lawyer beforehand. If you are not confident speaking English, you can also ask the AAT for an interpreter.

Calculating the time limit to apply for a review in the AAT

There is a very short and strict time limit to apply for a review to the AAT (9 days).

The time limit of 9 days is from the date you were deemed to be notified of the decision. It is important to know that this is not always the date that you received your Notice of Visa Cancellation or heard about it.

The amount of time you have to lodge your application depends on how you received the Notice of Visa Cancellation. It will depend on the date you are deemed to have been notified of the decision to cancel your visa. This may be different to the date on the Notice. An example of how to calculate time limits is in 5. Working out time limits.

If the Notice of Visa Cancellation was posted to you:

  • The date you are deemed to have been notified of the decision is 7 working days (don’t count Saturday and Sunday or any public holiday) from the date on the Notice;
  • You then have 9 days (including Saturday and Sunday) from the date you are deemed to have been notified to lodge your Application to the AAT. If this date falls on a weekend or public holiday, then you can lodge your application on the next working day.

If you received the Notice of Visa Cancellation by hand, fax or email:

  • The date you are deemed to have been notified of the decision is the day after it was handed, faxed or emailed to you;
  • You have 9 days (including Saturday and Sunday) from the date you are deemed to have been notified to lodge your Application to the AAT. If this date falls on a weekend or public holiday, then you can lodge your application on the next working day.

You cannot ask for extra time to make an application for review, unless there was something wrong with the Notice of Visa Cancellation itself or the way that you received it.

This does not happen very often but if you think it might have happened to you get legal advice immediately.

Going to the AAT

You will be given a File Number by the AAT when you lodge your Application for review. It will have the year when you lodged your application and another number – for example: 2011/1234. You should give your file number whenever you contact the AAT. This will make it easier for them to find out about your case.

After you have lodged your Application, there are very strict time limits for you to provide more evidence or information to support your appeal. It is very difficult to get extensions. This is because the AAT must make a decision within 84 days of the date you are deemed to have been notified of the decision to cancel your visa. If the AAT does not make a decision within the 84 days, the decision to cancel your visa will automatically be “affirmed”. This means that the AAT will not be able to change DIAC’s decision and your visa will remain cancelled.

The directions hearing

The first thing that will happen is a directions hearing.

At the directions hearing, an officer of the AAT will:

  • explain the process;
  • make sure you understand what you need to do to get ready for the final hearing;
  • make sure you understand when you need to provide your written evidence; and
  • set a date for the final hearing.

The directions hearing will probably be held by telephone and is usually short. Sometimes there are legal issues that also need to be dealt with at the directions hearing. DIAC will be represented by a lawyer at the AAT. You should get the contact details of DIAC’s lawyer so that you can send your evidence to them.

At the directions hearing it is important for you to write down:

  1. the dates of your final hearing; and
  2. the date by which you need to give your evidence to the AAT and DIAC.

The final hearing

The final hearing is where the AAT will consider all the evidence. It is advisable to attend the hearing. You might be able to do this by telephone if you cannot go in person, but it is best to attend in person.

The AAT will either:

  1. affirm (or confirm) the decision to cancel your visa; or
  2. overturn the decision, and give you back your visa.

The AAT must make its decision within 84 days of the date you are deemed to have been notified of the decision.

Exclamation! Important tip

The AAT can provide an interpreter for you at the hearing. If you need an interpreter, contact the AAT (or ask someone else to contact the AAT for you) a few days before your hearing to make sure an interpreter is organised for you. You can also get an interpreter for any of your witnesses.

Providing evidence for the final hearing

Evidence can be in the form of documents including statements, affidavits, letters of support, medical and other reports. It can also be the information you provided to DIAC when you responded to the Notice to Consider Cancellation of your visa. You might have prepared a statement at the DIAC stage, so there is no need to do another statement. See the example of a statement in 7. Examples. An example of a letter of support that you may wish a family member or friend to write for you is in 7. Examples.

You must give all your evidence to the AAT and copies to DIAC. This must be done no later than 2 working days before the hearing. If you do not give your evidence to the AAT and to DIAC at least 2 working days before your hearing the AAT cannot look at it and take it into account.

A statement made by you or a witness should include the facts you want to tell the AAT, signed and dated at the end. You or any witness can also give evidence at the hearing.

If you or someone else wants to give evidence at the hearing, a statement or letter must be given to the AAT and DIAC within the 2-day time limit. If a witness does not give a statement they cannot give evidence at the hearing.

Exclamation! Important tip

You must give the AAT and DIAC all your evidence at least 2 working days before the hearing.

When can I be removed from Australia?

If you do not have a valid visa you must be “removed” or deported as soon as possible. This means that if your visa is cancelled and you have completed the custodial part of your sentence, DIAC can take steps to send you back to your country of citizenship. This means the country that issued you your passport. You can be removed even if you have not finished your parole period. However, if you have applied to the AAT, you cannot be removed until the AAT makes a decision.

If you have not applied to the AAT or the AAT has “affirmed” the decision to cancel your visa, there is usually nothing else you can do to remain in Australia. Sometimes you can go to court to challenge the decision of the AAT but this is very difficult to do.

What happens if I am removed from Australia?

If you are removed from Australia because your visa is cancelled, you will be taken to your country of citizenship. You may be given “post return support” which means that you might be given some money, some help with accommodation, transport and/or clothing costs. However, you will owe the Australian government money for your immigration detention and for the costs of your removal. Most importantly, you will never be able to return to Australia.