Yukio Hayashi 09 Apr 2018
Q: I am an office worker with a work visa. I was fined due to a bodily harm case. Not too long ago, I received a notice from the Immigration Office that they were prepared to cancel by visa due to the conviction. What should I do now? (25 year-old office worker, male)
A: As seen in the previous column, according to the Migration Act if it is found that the visa holder is deemed to be incompatible with the “Character Test”, the Department of Immigration has the authority to revoke the individual’s visa and “this decision is at the discretion of the Department of Immigration”. In this regard, the basis for judging the visa revocation is dependent on the conviction of the actual bodily harm crime.
Usually, visa holders that receive notices that state there is a possibility of the revocation of the visa by the Department of Immigration have seven business days from the date of notice to appeal. The deadline is observed strictly.
In order to make an appropriate appeal to the Department of Immigration, you should first consult an expert lawyer as soon as practicable. However, when drafting a letter of appeal, the thing that must be taken into consideration is how much defence is claimed in the letter. Regardless of whether it is Japan or Australia, once the Department of Immigration has revoked the visa, unless hard facts and evidence are provided, at that stage, it is difficult to overturn the Department’s decision.
Once the Department of Immigration makes a decision to cancel the visa, an appeal to the Administrative Appeals Tribunal must be filed within seven business days. This time limit must be adhered to. The Tribunal reserves the right to consider all evidence that the Department of Immigration has taken into consideration, regarding the revocation of the visa, and all new materials that have not been submitted to the Department of Immigration and can cancel the visa based on Merit Review for the same reason as the Department of Immigration. Further, in the circumstance that the revocation of the visa by the Department of Immigration is inevitable, it may be necessary to provide the Department of Immigration a minimal amount of defence evidence and submit the rest to the Administrative Appeals Tribunal as new evidence as it will be more likely that they will overturn the visa revocation decision.
In other words, rather than the Administrative Appeals Tribunal making a decision based on the exact same materials and evidence that the Department of Immigration has considered, should new evidence be submitted, the previous decision could be overturned. Wouldn’t this be easier? However, the decision is dependent on the new evidence being provided.
Additionally, once the visa has been cancelled, the individual will be considered an illegal immigrant and may be detained at a detention centre at any time until a bridging visa is issued. In a similar case, the Department of Immigration was contacted in order to apply for a bridging visa on behalf of the individual whose visa had been revoked. However, he was told that the bridging visa must be applied for at the counter. Later, the lawyer with the individual went to the counter and as soon as he stated, “We came to apply for a bridging visa as the visa was cancelled”, three staff members surrounded the individual and arrested him, sending him to an immigration detention centre. As there are cases such as these, it is best to consult a professional as soon as possible.