Refusals and Cancellations under Section 501

Section 501 of the Migration Act 1958 governs the character requirements for visas in Australia. If you've been charged or convicted of crimes in Australia, you may be facing a refusal or cancellation under section 501.

In this article we summarize how section 501 operates and the consequences of having your visa refused or cancelled under this section.

Refusals and Cancellations under Section 501

When can a visa be refused or cancelled under section 501 of the Migration Act 1958?

Situation 1.?If you are applying for a visa, the Minister may refuse to grant you a visa if you do not satisfy the Minister that you pass the character test* under section 501(1).

Situation 2.?If you are a visa-holder, the Minister may cancel your visa under section 501(2) if:

• the Minister reasonably suspects that you do not pass the character test; and
• you do not pass the character test.

Situation 3.?The Minister may refuse to grant or cancel your visa under section 501(3) if:

• the Minister reasonably suspects that you do not pass the character test; and
• the Minister is satisfied that the refusal or cancellation is in national interest.*

*National interest is not defined under legislation

Situation 4.?The Minister must cancel your visa under section 501(3A) if:

• you have a substantial criminal record** or have been found guilty of a sexually based crime involving a child; and
• you are serving a full-time sentence of imprisonment.

*What is the character test?

You do not pass the character test if you fall within any of the grounds in subsections 501(6)(a)-(d). The grounds are categorised as follows:

• substantial criminal record
• conviction for immigration detention offences
• association with persons suspected of engaging in criminal conduct
• past and present criminal or general conduct
• significant risk of particular types of future conduct

**What is a substantial criminal record?

Pursuant to section 501(7), a substantial criminal record means you have been:

• sentenced to death or life imprisonment; or
• sentenced to a term of imprisonment of 12 months or more; or
• sentenced to 2 or more terms of imprisonment with a total of 12 months or more; or
• acquitted on grounds of either insanity or unsoundness of mind and you have been committed to an institutional; or
• found to be not fit to plead and the court has found that you have nevertheless committed the offence.

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What happens next?

If you fall under Situations 1 or 2, the Minister will provide you with a Notice of Intention to Consider Refusal (NOICR) or Notice of Intention to Consider Cancellation (NOICC) respectively. The Notice will set out that the Department is considering cancelling/refusing your visa.

The NOICC or NOICR provides you with an opportunity to provide submissions and documents in support of why your visa should not be cancelled / refused. Generally, the timeframe to provide a response to the notice is 28 days.

What will the Department of Home Affairs consider?

For Situations 1 or 2, if the Department is not satisfied that you pass the character test, they will need consider whether they should exercise their discretion to refuse/cancel your visa. In making that decision, there will be primary considerations and other considerations that the Department takes into account. These factors are set out in Direction No. 90.

The Department must take the primary considerations into account when deciding whether to revoke the cancellation of your visa under section 501CA(4). The primary considerations are:

1. Protection of the Australian community from criminal or other serious conduct.
2. Whether the conduct engaged in constituted family violence.
3. The best interests of minor children in Australia.
4. Expectations of the Australian community.

Where relevant, the Department must also take into account other considerations including:

• Australia’s international non-refoulment obligations.
• Extent of impediments if you are removed.
• Impact on victims.
• Your links to the Australian community including the strength, nature and duration of your ties to Australia, and any impact on Australian business interests.

What if my visa is automatically cancelled under section 501(3A)?

If you fall under Situation 4, your visa will be automatically cancelled by the Department of Home Affairs.

Fortunately, the Department’s decision to cancel your visa is not final. The mandatory cancellation may be revoked by the Department if they are satisfied that you do, in fact, pass the character test (section 501CA(4)(b)(i)); or there is another reason for revocation (section 501CA(4)(b)(ii)).

The Department will invite you to make representations in a particular manner within a time period pursuant to section 501CA(3). You will then have 28 days after you are taken to have received the notice to request revocation of the decision. You cannot ask the Department to extend this time frame.

When you ask the Department to consider revoking the cancellation of your visa under section 501(3A), they must take into consideration Direction 90.

What should I include in my response to the Department?

1. A reply letter to the Department explaining how each of the primary considerations and other considerations apply to you.
2. Statutory Declarations and other written statements to support your application.
3. Other evidence.

Examples of evidence you may wish to provide:

The above are just general examples. Each situation is unique and we do recommend that you obtain professional advice to maximise your chances for a successful outcome.

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Can I apply to the Administrative Appeals Tribunal (AAT) to review the decision?

Generally, you can apply for review by the AAT in relation to:

• a section 501(1) or section 501(2) decision (i.e. Situations 1 and 2 above), or
• a delegate’s decision under section 501CA(4) not to revoke a decision to cancel a visa (i.e. Situation 4 above),

and you would have been entitled to seek review had the decision been made on another ground.

Note that the AAT cannot review decisions made by the Minister personally to cancel or to refuse the grant of a visa under section 501 or not to revoke a visa cancellation.

What happens if my visa is cancelled under section 501?

When your visa is cancelled, you become an unlawful non-citizen. When a person becomes an unlawful non-citizen, they can be placed in immigration detention, where they will remain detained until they are either granted another visa, their cancellation is revoked or they are deported/removed from Australia.

As a result of your cancellation, you will not be able to apply for most types of visas while in Australia (other than a protection visa or a bridging (removal pending) visa)

If your visa is cancelled under section 501 and you are unsuccessful at both the Department level and AAT level, you can be removed from Australia. If you are removed from Australia, you may not be able to be granted another visa to return to Australia.

A refusal or cancellation under section 501 is a complex immigration matter and we recommend that you obtain professional advice as soon as possible.

If you are facing this situation, contact Migration Affairs for a consultation today.