What happens if my visa is being considered for refusal or cancellation due to character (Direction 110)

If you’re facing the possibility of having your visa refused or cancelled due to a character issue, it’s important to understand the process and what to expect. This blog will explain key steps, considerations, and how assistance from Australian Migration Lawyers help can make a difference.

Who makes the decision on the cancellation?

When a visa faces cancellation due to character issues under Direction 110, several key entities within the Department of Home Affairs are involved in the decision-making process:

• Delegate of the Minister for Home Affairs: The initial decision on visa refusal or cancellation is often made by a delegate appointed by the Minister. This delegate must follow the guidelines established in Direction 110, which specifies both primary and secondary considerations.
• Minister for Home Affairs: In certain cases, the Minister for Home Affairs may personally make the decision.
• The Administrative Appeals Tribunal (or the Administrative Review Tribunal upon its establishment)

What is the Visa Applicant Character Consideration unit (VACCU)

The Visa Applicant Character Consideration Unit (VACCU) is a specialized body within the National Character Consideration Centre (NCCC), a division of the Department of Home Affairs Its primary responsibility is to assess the character of individuals applying for visas to enter or stay in Australia.

The primary function of the VACCU is to thoroughly evaluate the character of visa applicants, with a focus on mitigating risks to the Australian community. The unit gathers and analyses information from various sources, including law enforcement and intelligence agencies, to assess whether an applicant’s background or past conduct raises any concerns. VACCU deals with a broad range of character issues, such as criminal convictions, involvement in serious misconduct, or associations with individuals or organizations involved in unlawful activities.

How long does the process take?

The time required for VACCU to complete its assessments can vary significantly based on the case's complexity and the volume of information reviewed. Applicants often face frustration due to lengthy delays, as VACCU may hold cases for extended periods before initiating a formal review.

As of March 2024, VACCU had seen a 30% increase in case finalizations compared to the previous year, though the number of referred cases continues to rise due to an influx of post-COVID applications. A new, lower threshold introduced in mid-September 2023 has led to an 18% reduction in the caseload. As of March 2024, there were 3,500 pending cases, with the processing time for 75% of older cases decreasing from 26 months to 16 months.

What items are considered during the process?

When evaluating visa cancellations under Direction 110, decision-makers must consider both primary and secondary factors to ensure fair and consistent outcomes. Primary and secondary considerations are further informed by eight overarching principles which are designed to guide decision-makers in balancing the individual circumstances of the visa holder with the broader interests of the Australian community.

Primary Considerations:

1. Community Protection:
   
   • This consideration involves evaluating the danger to the Australian community, focusing on the severity and nature of the visa holder’s criminal or general conduct. A substantial criminal record or involvement in criminal conduct, such as sexually based crime involving a child, violence threatening harm, or crime involving torture, weighs heavily against the visa holder. Present criminal or general conduct is also examined to determine ongoing risks.
2. Best Interests of Minor Children:
   
   • The effect of the visa cancellation on any minor children residing in Australia is a critical factor, including the potential emotional and psychological impact on these children.
3. Community Expectations:
   
   • This consideration reflects societal expectations that individuals committing serious crimes or posing risks to the community should not be permitted to stay in Australia.
4. Ties to Australia:
   
   • The decision maker assesses the strength, duration, and nature of the visa holder’s connections to Australia, including family relationships, social ties, and employment. The ministerial direction emphasizes this aspect more than previous guidelines, highlighting the importance of meaningful ties.
5. Family Violence:
   
   • When a non-citizen has been involved in family violence, either through a criminal offence or credible allegations, this factor weighs against them. The Government’s stance is clear: individuals committing such an offence should not have the privilege of entering or remaining in Australia. This aligns with societal expectations for a safe and lawful environment.

Secondary Considerations:

1. Legal Consequences:

• Decision-makers need to recognize that unlawful non-citizens may face removal from Australia and possible detention. They must also consider non-refoulement obligations, which prevent returning individuals to places where they could be at risk of harm.

2. Extent of Impediments if Removed:

• It is important to evaluate the challenges the non-citizen might encounter in reintegrating into their home country, including any significant hardships they may face.

3. Impact on Australian Business Interests:

• The decision should account for any potential adverse effects on Australian businesses, particularly if the non-citizen is integral to a business or industry.

How do I know if I have been issued a refusal or cancellation on the basis of character?

If a decision is being made to refuse or cancel your visa, the Department of Home Affairs will notify you in writing. This notice will include the reasons for the decision, referencing relevant sections of the Migration Act 1958 and the specific grounds under the character test that were not met.

It is important to carefully read this communication, as it will outline your rights to appeal or request a review.

What are my options and next steps?

If your visa has been refused or cancelled on the basis of character under Direction 110, you have several options and steps you can take:

1. Review the Decision Notice:
   
   • Carefully read the decision notice you received. It will outline the reasons for the refusal or cancellation and provide information on your rights to appeal or seek a review.
2. Seek Legal Advice:
   
   • Consider consulting with a lawyer at Australian Migration Lawyers. They can provide personalized advice based on your specific circumstances and help you understand your options.
3. Appeal to the Administrative Appeals Tribunal (ART):
   
   • If eligible, you can appeal the decision to the ART. The ART will review the decision and consider any new evidence you provide. Be mindful of the strict time limits for lodging an appeal.
4. Request Ministerial Intervention:
   
   • After the ART, in some cases, you may request the Minister for Home Affairs to intervene in your situation. The Minister has discretionary powers to substitute a more favourable decision for a decision made by the ART. However, this option is generally reserved for exceptional cases.
5. Prepare and Submit Additional Information:
   
   • If you are given the opportunity to provide additional information or evidence, make sure to gather and submit all relevant documents that support your case. This may include character references, evidence of rehabilitation, or proof of ties to Australia.

How can an Australian Migration lawyer assist?

Navigating the complexities of a visa refusal or cancellation due to character concerns can be challenging. Australian Migration Lawyers, can offer you valuable support throughout this process. Our services include carefully examining the decision notice to identify potential grounds for appeal and advising you on your legal rights and options.They can assist in gathering and presenting compelling evidence to challenge the decision, prepare and lodge appeals or applications for judicial review, and represent you in interactions with the Department of Home Affairs. With their deep understanding of immigration law and the nuances of Direction 110, Australian Migration Lawyers can provide you with crucial support in addressing character concerns and working towards a favourable resolution of your visa issue.