If you are currently serving a prison sentence and are not an Australian citizen, you may be at risk of having your visa cancelled.
The Department of Home Affairs (the department) must automatically cancel your visa if you:
- are currently serving a full-time prison sentence and
- have been sentenced to 12 months or more imprisonment (this includes time already served) or
- have been sentenced to life imprisonment or
- have been sentenced to death or
- have been found guilty of a sexual offence involving a child.
This is called a mandatory visa cancellation.
Will my visa be cancelled?
If you meet these criteria for automatic or mandatory cancellation, the department will give or send you a letter cancelling your visa. This is called a 'Notice of Visa Cancellation'.
This letter also tells you that you can apply to ‘revoke’ the department’s decision. ‘Revoke’ means asking the department to reverse its decision to cancel your visa.
There are strict time limits:
- if a staff member from the department handed you the letter, you only have 28 days to apply for revocation from the date of the letter
- if the department sent you the letter by post, you only have 35 days to apply from the date of the letter.
If you miss the deadline to apply, you will not be able to apply for revocation. You can be deported (removed) from Australia once you finish your prison sentence.
Even if your visa is not cancelled automatically, the department still has other powers to cancel your visa on ‘character grounds’ (based on your criminal behaviour) and may send you a letter called a 'Notice of Intention to Consider Cancelling Your Visa'.
What happens after I apply for revocation?
The department will send you a letter to let you know that they got your revocation application. The department will begin assessing whether you should get back your visa. If the department has any information that may disadvantage your application, they will write to you to ask you to comment on that information.
Once the department makes its decision, it will send you a letter telling you what they have decided.
While waiting for the department to consider your revocation request, you will continue to be detained, either in prison or immigration detention.
If the department does not agree to give back your visa, you will have to leave Australia as soon as possible after your sentence is completed.
If you have already finished your sentence and are in immigration detention when the department decides not to give the visa back, you will be removed from Australia as soon as possible.
What can I do if my revocation request is denied?
If the department does not agree to give your visa back you have two options:
- if a staff member of the department made the decision, you will have nine days to apply to the Administrative Appeals Tribunal (AAT)
- if the Minister for Home Affairs (the Minister) made the decision, you will not be able to go to the AAT. You may have grounds for appealing the Minister’s decision to the Federal Court of Australia.
Where can I get legal help?
We can provide preliminary advice about your rights. You should apply for revocation immediately in case it takes some time to speak with a lawyer.
If you are in prison, ask the prison officers to book you in to see our prison advice service. The lawyer will then refer you to our migration team who will arrange a video conference.
If you are in immigration detention or have family members in Victoria who can call on your behalf, you can call us on 1300 792 387.
Self-help kit for prisoners facing mandatory visa cancellation
We have put together a 'self-help kit' to assist prisoners whose visas have been mandatorily cancelled.
This kit explains the mandatory visa cancellation process in more detail and will help you to draft your own response to the department seeking revocation of its decision.
Download the Mandatory visa cancellations - self-help kit
Disclaimer: The material in this print-out relates to the law as it applies in the state of Victoria. It is intended as a general guide only. Readers should not act on the basis of any material in this print-out without getting legal advice about their own particular situations. Victoria Legal Aid disclaims any liability howsoever caused to any person in respect of any action taken in reliance on the contents of the publication.
We help Victorians with their legal problems and represent those who need it most. Find legal answers, chat with us online, or call us. You can speak to us in English or ask for an interpreter. You can also find more legal information at www.legalaid.vic.gov.au
Reviewed 07 April 2022