Visa cancellation kit
See 7. Examples for an example of a response to a Notice of Intention to Cancel.
It follows the structure of Direction 41, which is the policy that DIAC looks at when deciding whether your visa should be cancelled, or whether you should just get a warning.
You should address each of the matters that is relevant to your circumstances - some will be more relevant than others. If they don't apply to you, leave them out.
1. The protection of the Australian community
(a) The seriousness and nature of the conduct
- List all the offences you have been convicted of and write when you were convicted and what the sentences were. Mention any special circumstances which made your sentence shorter than normal.
- Did your offences involve any violence? If no you should say so, if yes, you should acknowledge this.
- Is your offence on the list of serious offences in Ministerial Direction 41? If the answer is no, say so.
- Write how much time there has been between each of your offences and how long it has been since your last offence.
- Were there "mitigating" circumstances which might reduce the seriousness of your offences? For example:
- drug or alcohol addiction at the time of the offence;
- your age at the time of the offence (if you were young);
- mental health problems at the time of the offence;
- circumstances in your family background or childhood (e.g. history of violence or abuse against you);
- other circumstances (e.g. you lost your job, had problems in your family or with your spouse or children);
- any facts of the offence that show that it was less serious than other examples of the same offence.
- Did the judge or magistrate who sentenced you say anything about any of the mitigating factors? If they did, refer to those comments.
Other relevant information
- Here you have a chance to show that you understand the effects of your behaviour on others (e.g. your family, your victim) and to explain how you feel about this.
- If you have done anything, or tried to do anything, to show you are sorry for what you did (e.g. apologise or pay compensation to the victim/s of your offence/s) explain this here.
- If there is anything else about your offence/s that you want the decision-maker to understand, explain it here.
(b) The risk that you might re-offend
- Think about the situation you were in before you went into prison and what was happening to make you offend. Explain what you have done to change yourself and to change your circumstances, so that there is little chance that you will re-offend. For example, whether you have:
- done any courses to deal with drug or alcohol problems;
- done any courses or had any therapy to deal with mental health problems or behaviour problems (e.g. anger management or decision-making);
- done any educational courses to improve your ability to get a job and be a useful member of the community (e.g. literacy or vocational courses).
- If you have done any courses, explain how they have helped you.
- If you feel you have made other positive changes, write how you have made those changes and how you are different. Who else has noticed the change and what did they see that was different? Include a letter of support from people who have noticed your changes.
- If you have never breached a court order (e.g. parole, bail, bonds, suspended sentences, or other promises to the court) or if your last breach was years ago, you should write this.
- If you have never breached prison rules, or if you have a prison record showing that you have not breached prison rules for a period of time, write this.
- Talk about any good things that you have done in the past for your family, friends, or community. For example, unpaid (or "volunteer") community work; coaching sport; caring for a sick or disabled person; caring for children; attending church and/or helping the church community.
- Write who you will live with when you are released (or who you are living with now)
- Who are the people who will help to keep you out of trouble? Why will they help you and what will they do that will help you not to offend again?
2. Age when you began living in Australia and how long you've been here
- Write how old you were when you arrived.
- If you came to Australia with your family, and/or if you had family already in Australia when you arrived, you should explain this. Give the names of your family members.
- Give a brief history of where you have lived and what you have done since you came to Australia - include the schooling and other studies you have done and the jobs you have had.
- If you have lived in Australia for less than 10 years but you have strong connections (or "ties") with people in Australia and the Australian community, you should write this, and give details of those ties.
- Write how you feel about Australia - do you feel like an Australian, do you feel that Australia is your home? If yes, write this.
3. International obligations
(a) The best interests of the child - this is about your children in Australia, or other children you are close to and have a relationship with
- Write how many children you have in Australia - give their names, ages, and whether they are Australian citizens. It is particularly important if they are under the age of 18, but you should still include them even if they are over 18.
- Write how often you see your children. If you are in prison, write how often they visit or how often you speak to them on the telephone or have other kinds of communication with them.
- Write what kind of relationship you have with your children now - Are you close? Do you support them financially or in other ways?
- Write whether you lived with your children before you went to prison and write about what kind of things you did with them.
- Are you close to any other children in Australia (e.g. step-children, foster children, grandchildren, adopted children, children who are not yours but who you treat as your own). Give their name, age, and relationship to you, how often you see them, what kind of support you give them.
- Write how long each child has lived in Australia and how strong their connection to Australia or people in Australia is. For example, are they doing well in school? Do they have friends? Are they attached to other people who live in Australia?
- Explain how each child would be affected if you had to leave Australia, including whether or not the child would leave Australia with you.
- If the child/children would leave Australia with you, how would this affect them? (e.g. write about the effect on their schooling, friends, relationships with other people, could they speak the language in the other country, would they know the culture, could they get the medical care and education they need in the other country?)
- If the child/children would stay in Australia, how would the separation from you affect them?
- Is there anyone else with parental responsibility for the child/children?
- If the child/children have said anything about not wanting you to leave Australia, write what they said.
- Write what role you want to play in the lives of your children in future. Write how you think you will be able to do this.
(b) Refugee or protection claims - this applies to people who are at risk of persecution if returned to their home country and might include people who came on a refugee or humanitarian visa
- If you got permanent residence because you were a refugee or if you came to Australia on a refugee or special humanitarian visa, write this and briefly explain what made you (and/or your family) leave your country of origin.
- If it is a long time since you left your country of origin but you still fear returning, write this and give reasons.
- If you did not come to Australia as a refugee but if you fear persecution (serious harm) in your country of origin for reasons of your race, religion, nationality, membership of a particular social group or political opinion, you should explain this. You should also get legal advice to see if you should apply for a protection (refugee) visa.
(c) Other international obligations
If you fear that you would face other types of harm, for example death, or torture and cruel, inhuman or degrading treatment or punishment in your country of origin, you should write this and give reasons why you fear this harm. Examples might be if your country of origin is at war (with another country or there is a civil war) or if you feel that you may face the death penalty for crimes you may have (or may be suspected of having) committed. If you feel that this section applies to you, get legal advice.
4. Other considerations
Family ties and other relationships
- Give information about any partner (husband, wife or de facto partner) you have in Australia. Write if they are an Australian citizen or permanent resident. Explain:
- how long you have known each other and how long you have been together;
- whether your partner is financially and/or physically dependent on you;
- how your offences and prison time have affected your relationship;
- what would happen to the relationship if your visa was cancelled and you had to leave Australia. Would your partner go with you or would they stay in Australia?
- List all the family you have in Australia, including all your relatives you have contact with. Give details of how close you are to them, how often you see them, how important they are to you.
- Write how your family will be affected if your visa was cancelled and you had to leave Australia.
- Explain if your age (young or old) makes it more difficult for you to leave Australia.
- If you are an older person and you cannot work or look after yourself, write if you would get the care or pension/income you need to survive if you have to return to your country of origin.
- If you are young and living with a parent (or someone who cares for you like a parent).
- Explain what you think might happen to you if you had to leave Australia and be separated from this person. How would you survive on your own?
- Explain any health problems you have and how they affect you.
- Make sure you give information about:
- any kind of care or help you need because of your health problems;
- the likelihood that you will recover from your health problems or whether they can only get worse;
- whether or not you would be able to get the treatment and care you need if you are returned to your country of origin (e.g. is the medication you need available in your country of origin, how much does it cost, is free health care available?);
- the likely effect on you if you cannot get the treatment or care you need.
Ties to the country that you will be returned to if your visa is cancelled
- If you have no connections, or not many connections, with people in your country of citizenship, explain this here.
- If you will have no-one to help or support you if you are deported, explain this here.
- If you can't speak the language, explain how you will cope.
Hardship likely to result from deportation
- How bad would it be for you if you were deported? What do you think would happen to you?
- Would the people you are close to in Australia be able to travel to the other country to visit you?
- How bad would it be for the people you are close to if you are deported? Explain the effect your deportation would have on those people, especially if they are dependent on you for some kind of help or support that they cannot get from anyone else.
Level of education
- If you have a good level of education and can make a positive contribution to the Australian community through work or other activities, explain this here.
Attachments (here, you should list the documents you are using as evidence to support what you write in your letter. List each report, letter, statement, certificate for example).
See 7. Examples for an example of a statement. You can do a statement at the Ministerial stage (before your visa is cancelled) or at the AAT stage (after your visa has been cancelled).
If you are preparing a statement for the AAT remember that you must include everything in your statement that you want to talk about at the AAT. If it is not in your statement, you can't talk about it at the AAT hearing.
It is important in your statement to say everything that is relevant and that you want DIAC to know about you. Usually you should include the following:
- How long you have been in Australia
- When you came to Australia
- Whether you have any family in Australia, including children, and how they would feel if you had to leave
- Whether you have any relatives in your country of origin
- What would happen to you if you had to go back to your country of origin, including whether your partner and children could go with you
- Details of any medical or health issues you have
- Details of your criminal record
- Anything that was going on in your life at the time you committed the offences which might explain your crime/s
- How you now feel about your crime/s - whether you regret the things that have happened and why
- Any courses you have done either in prison or outside
- Why you will not re-offend if you are allowed to stay in Australia
- Who you will live with if you are allowed to stay in Australia
- How you will support yourself - and whether you have a job to go to.
This statement is your chance to tell DIAC the history surrounding your offending behaviour. It is also really important to tell DIAC why you are no longer a risk to the Australian community - this means telling them why you will not re-offend.
The reasons for this might be, for example, that you have undergone a drug and alcohol rehabilitation course in prison and you no longer take drugs; you have a strong, supportive family/partner and they will help to keep you out of trouble; you have children and you do not want to take the risk of having to leave them.
See 7. Examples for an example of a letter of support. It can be used by anyone who knows you and who wants to say they support you staying in Australia. It can be used by family members, friends, employers, religious or community representatives. It can be used at any stage in the cancellation process - while DIAC is considering cancelling your visa or after DIAC has cancelled your visa and you are appealing to the AAT. Remember that if a person gives you a letter of support to be used at the AAT they may have to give evidence at the hearing.
The main reason to get letters of support is so you can prove to DIAC that you are of good character, that you have support in Australia, and that you are not a threat to the Australian community.
The following are some of the things a letter of support should include:
- Who they are and what their relationship is with you. How long they have known you.
- A description of their relationship with you.
Is it a close relationship? How often do you see them or talk to them? If they come to visit you in prison, say how often. If they don't, say why.
- The person should tell DIAC/AAT that they know about your criminal record.
They need to show that they know about your offence/s and that they will support you. If they know about anything that was going on in your life at the time of the offence (for example, you were drinking heavily, you had just split up from your partner, your parent had died, etc), they should write about this.
- If you have spoken to them about how you feel about your offence/s, they should include this in the letter.
If you have said anything to them about feeling bad about your criminal offence/s, they should put that in the letter. It is important to put anything in the letter that you have said or anything that they know about that shows you are unlikely ever to break the law again. If they think that you have changed since committing your offence/s, they should say how you have changed and why. For example, if you have undertaken a drug and alcohol course in prison, or an anger management course.
- What are your good qualities? What contributions have you made to the community?
If you have cared for anybody, like a child or a sick relative or friend, or supported someone financially, they should include something about that here. Have you done any community work that the person knows about? Do you have a good record of employment? They should write about anything that shows you have a good character and are respected by other people.
- What support will the person be able to give you on your release from prison?
If they are able to support you - financially or emotionally - this should be included in the letter. Maybe they can help you find a job, or a place to live.
- Say why they think you should be allowed to stay in Australia.
If they know your family members, they should say how they think they might be affected if you had to leave Australia. They should include any details they know about how your life might be in your country of citizenship. If you have spoken to them about how you would feel about leaving Australia, they should include those details.