Cancellation of visa ①

Yukio Hayashi    08 Mar 2018

Q: I am an office worker and was dispatched from Japan on a 457 visa last year. Just recently, I hit a man whilst under the influence of alcohol and was charged with actual bodily harm. My friend told me that if I were found to be guilty then my visa may be cancelled, is this true? (25-year-old office worker, male)

A: Recently, the Department of Immigration has been cancelling visas easily in relation to those kinds of cases. Late last year, the Department of Home Affairs was established with the Department of Immigration alongside the Australian Security Intelligence Agency, Federal Police and Federal Prosecutors  apart from the Department, making the Australian federal government’s idea of immigration more focused with regards to security. In this column, the term ‘Department of Immigration’ will be used.

Per section 501(2)(a) of the Migration Act (1958), “the Department of Immigration may cancel the visa if the visa holder fails the ‘character test’ as seen in s501(6)”.

The visa holder may fail their character test if they commit a serious crime such as murder or terrorism and additionally under s501(6)(c), “the visa holder may be disqualified if considering the past and current criminal acts and past general actions, he or she is considered to not be of Good Character”. Therefore, whether the individual is of Good Character or not is dependent on the discretion of the Department of Immigration. Let us look at the example below.


A man on a working visa got into a fight with another person and with a knife injured the other person's hand, leaving a 1 cm injury. The individual was charged with Reckless Wounding and was not able to argue that it was out of self-defence. Although Reckless Wounding has a maximum sentence of seven years, the judge stated that there was room for consideration and sentenced him with a $600 fine and a nine -month Good Behaviour Bond which is considered to be a very light sentence. However, for that reason, the individual's visa was revoked for having Bad Character and he was forcibly taken to a Detention Centre.


With regard to this individual, if he are found to be guilty, as described above, the visa will most likely be cancelled. Even if found guilty and the visa is revoked, depending on the Department of Immigration’s decision, it may be appealed at the Administrative Appeals Tribunal. In some cases, the visa cancellation can be nullified.

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Yukio Hayashi

Yukio Hayashi

Senior Partner

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Cancellation of visa ②

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.

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