Section 501 of the Migration Act 1958 gives the Australian Government significant powers to refuse or cancel a visa where a non-citizen does not satisfy Australia’s character test.
A section 501 decision can have extremely serious consequences. Depending on the circumstances, a person may lose their visa, become liable for immigration detention and removal, face restrictions on applying for another visa in Australia, and encounter significant barriers to returning to Australia in the future.
Section 501 matters can arise in relation to both temporary and permanent visa holders.
The Character Test
The character test is contained in section 501(6) of the Migration Act 1958.
A person may fail the character test on a number of grounds, including circumstances involving:
- a substantial criminal record;
- certain sexually based offences involving a child;
- convictions connected with immigration detention or escape from detention;
- membership of, or association with, persons, groups or organisations suspected of involvement in criminal conduct;
- suspected involvement in people smuggling, people trafficking, genocide, war crimes, crimes against humanity, torture, slavery or other crimes of serious international concern;
- past and present criminal conduct;
- past and present general conduct;
- a risk of future criminal conduct;
- a risk of harassing, molesting, intimidating or stalking another person;
- a risk of vilifying a segment of the Australian community;
- a risk of inciting discord in the Australian community;
- a risk of being a danger to the Australian community;
- an adverse security assessment;
- certain Interpol notices; and
- other grounds prescribed by the character provisions.
The character test is therefore considerably broader than simply asking whether a person has a criminal conviction.
Substantial Criminal Record
One of the most common grounds for section 501 action is a substantial criminal record.
Section 501(7) defines when a person has a substantial criminal record. This includes circumstances where a person has been:
- sentenced to death;
- sentenced to imprisonment for life;
- sentenced to a term of imprisonment of 12 months or more; or
- sentenced to multiple terms of imprisonment where the total is 12 months or more.
Other circumstances specified by the legislation can also constitute a substantial criminal record.
Importantly, the character test involves the sentence imposed, not simply the period actually spent in custody.
Discretionary Cancellation – Section 501(2)
Under section 501(2), a visa may be cancelled where:
- the decision-maker reasonably suspects that the person does not pass the character test; and
- the person does not satisfy the decision-maker that they pass the character test.
Even where a person does not pass the character test, cancellation under this provision involves an exercise of discretion.
This means that the question is not necessarily limited to:
“Does the person pass the character test?”
There may also be the separate question:
“Should the visa nevertheless not be cancelled after all relevant considerations are assessed?”
A detailed response to a proposed cancellation can therefore be critical.
Mandatory Cancellation – Section 501(3A)
Section 501(3A) provides for mandatory visa cancellation in prescribed circumstances.
The Department must cancel a person’s visa where the statutory requirements are met, including where the person is serving a sentence of imprisonment on a full-time basis in a custodial institution and fails the character test because of specified substantial criminal record grounds or certain sexually based offences involving a child.
The initial cancellation is mandatory where the statutory test is met.
However, this does not necessarily mean that the cancellation is the end of the matter.
The person may be invited to request revocation of the mandatory cancellation under section 501CA.
Section 501CA – Revocation of Mandatory Cancellation
Where a visa has been mandatorily cancelled under section 501(3A), the Department must provide the affected person with written notice and invite them to make representations about revocation of the cancellation.
The Minister may revoke the cancellation where representations are made in accordance with the invitation and the Minister is satisfied that:
- the person passes the character test; or
- there is another reason why the original cancellation should be revoked.
The second limb is particularly important.
A person who clearly fails the character test may still be able to argue that there are sufficiently strong reasons why the cancellation should nevertheless be revoked.
Strict Time Limit
The time limit for responding to a mandatory cancellation is extremely important.
Home Affairs currently states that a person has 28 days to request revocation of a mandatory cancellation.
Section 501 matters should therefore be treated as urgent immediately upon receipt of a cancellation notice.
Ministerial Direction and the Exercise of Discretion
Where the relevant decision is made by a delegate or the Administrative Review Tribunal, the decision-maker must consider the applicable Ministerial Direction governing section 501 decision-making.
The Direction establishes considerations relevant to deciding whether a visa should be refused or cancelled, or whether a mandatory cancellation should be revoked.
These considerations can include matters such as:
- protection of the Australian community;
- nature and seriousness of the person’s conduct;
- risk of future offending or harm;
- expectations of the Australian community;
- family violence considerations;
- best interests of affected minor children in Australia;
- strength, nature and duration of the person’s ties to Australia;
- Australia’s international legal obligations;
- consequences for Australian family members;
- impact on Australian business interests; and
- other relevant circumstances.
A section 501 submission should therefore address the applicable Direction systematically rather than simply asking for compassion.
Protection of the Australian Community
A central consideration is the protection of the Australian community from criminal or other serious conduct.
Relevant matters can include:
- nature and seriousness of the offending;
- frequency of offending;
- escalation or de-escalation in offending;
- harm caused to victims;
- sentence imposed;
- time since the last offence;
- conduct while incarcerated;
- parole compliance;
- rehabilitation;
- treatment programs;
- substance-abuse treatment where relevant;
- psychological or psychiatric evidence where appropriate;
- insight and remorse; and
- evidence concerning the risk of reoffending.
A strong submission should directly confront adverse conduct rather than minimise serious offending.
Rehabilitation and Risk of Reoffending
Evidence of genuine rehabilitation can be important.
Depending on the circumstances, relevant evidence may include:
- completion of rehabilitation programs;
- counselling;
- psychological reports;
- drug and alcohol treatment;
- anger-management programs;
- educational achievements;
- vocational training;
- employment history;
- positive custodial behaviour;
- parole reports;
- community support;
- evidence of changed circumstances;
- evidence of insight into previous offending; and
- a realistic reintegration plan.
The evidence should demonstrate why the person’s circumstances now differ from those that existed when the offending occurred.
Best Interests of Minor Children
Where children under 18 in Australia would be affected by the decision, their best interests can be a significant consideration.
A submission may address:
- the child’s relationship with the visa holder;
- frequency and quality of contact;
- emotional attachment;
- financial support;
- parenting responsibilities;
- educational needs;
- medical or developmental circumstances;
- psychological impact of separation;
- whether the child could realistically relocate overseas;
- the child’s relationship with other caregivers; and
- the long-term consequences of separation.
Evidence from schools, doctors, psychologists, family members and other professionals may be relevant depending on the case.
Ties to Australia
The person’s connection with Australia can also be important.
Relevant matters may include:
- age when the person first arrived in Australia;
- total period of residence;
- Australian citizen or permanent resident family members;
- spouse or partner;
- children;
- parents and siblings;
- employment history;
- community involvement;
- education undertaken in Australia;
- cultural and social integration; and
- limited connections with the country to which the person may be removed.
A person who arrived in Australia as a young child and has spent most of their life here may have substantially different considerations from someone who arrived recently.
Family Violence
Family violence is specifically relevant within the current section 501 decision-making framework.
Where family violence forms part of the person’s conduct, it can weigh heavily against them. Conversely, allegations, findings and surrounding circumstances must be accurately identified and addressed.
A submission should not minimise established family violence and should provide evidence of rehabilitation, behavioural change and risk management where relevant.
International Legal Obligations
Australia’s international legal obligations may also be relevant.
Depending on the person’s circumstances, this may involve claims concerning the consequences of removal to another country, including protection-related considerations.
These issues can be complex and should be supported by appropriate evidence.
Evidence in a Section 501 Matter
A comprehensive section 501 response or revocation request may include:
- criminal history;
- court records;
- sentencing remarks;
- parole documentation;
- prison records;
- rehabilitation certificates;
- psychological or psychiatric reports;
- drug and alcohol treatment evidence;
- employment records;
- character references;
- evidence of community involvement;
- statements from the visa holder;
- statements from spouse, children and family members;
- children’s birth certificates;
- school and medical evidence concerning children;
- evidence of financial support;
- evidence of long-term residence in Australia;
- evidence concerning ties to the country of nationality;
- evidence concerning conditions in the receiving country; and
- a detailed submission addressing the applicable legislation and Ministerial Direction.
The evidence should be organised around the actual statutory and Direction considerations, rather than simply providing a large collection of character references.
Administrative Review Tribunal
Some section 501 decisions made by a delegate may be reviewable by the Administrative Review Tribunal (ART).
The ART can reconsider the merits of an eligible cancellation or refusal decision.
However, strict statutory time limits apply. The decision notification should be reviewed immediately to determine whether ART review is available and the deadline for lodging the application.
A person should not assume that every section 501 decision is reviewable by the ART.
Minister’s Personal Decisions
The Migration Act also gives the Minister significant personal powers in relation to character decisions.
Where a decision is made personally by the Minister under particular provisions, merits review through the ART may not be available.
Judicial review may potentially remain available where there is an alleged jurisdictional or legal error, but a court does not simply reconsider the merits of the character decision.
Consequences of Section 501 Cancellation
The consequences of a section 501 cancellation can extend far beyond losing the current visa.
Home Affairs identifies potential consequences including:
- loss of lawful immigration status;
- immigration detention;
- removal from Australia;
- restrictions on applying for further visas;
- restrictions on returning to Australia; and
- potential application of Special Return Criterion 5001.
A person whose visa has been cancelled under section 501 may therefore face serious long-term immigration consequences.
Restrictions on Further Visa Applications
Section 501 character cancellation can significantly restrict a person’s ability to make another visa application while remaining in Australia.
Home Affairs states that where a person’s visa has been cancelled or refused on character grounds since their last arrival in Australia, the visa options available to them while in Australia can be extremely limited, with a Protection visa (subclass 866) potentially remaining available where the person satisfies the applicable eligibility requirements.
This is another reason why the original cancellation or revocation process should be approached carefully.
Section 501 Cases Require Immediate Action
Character cancellation matters are highly time-sensitive.
A person receiving a:
- Notice of Intention to Consider Cancellation;
- section 501 cancellation decision;
- mandatory cancellation notice;
- invitation to request revocation;
- ART review decision; or
- other character-related notice
should obtain advice promptly.
The legal pathway, available review rights and deadline depend upon who made the decision, the statutory provision used and the person’s individual circumstances.
How Melton Migration Can Assist
At Melton Migration, we assist clients with complex section 501 character matters, including:
- assessing the section 501 character test;
- responding to Notices of Intention to Consider Cancellation;
- discretionary cancellation matters;
- mandatory cancellation under section 501(3A);
- section 501CA revocation requests;
- preparation of detailed character submissions;
- rehabilitation and risk-of-reoffending evidence;
- best-interests-of-children submissions;
- family and Australian ties;
- international obligations;
- preparation of witness and documentary evidence;
- Administrative Review Tribunal character matters; and
- coordination with legal practitioners where court proceedings or specialist legal representation are required.
Section 501 cases require a detailed understanding of the person’s criminal history, immigration history, family circumstances, rehabilitation, risk profile and ties to Australia. A carefully structured response should address both the adverse conduct and every relevant consideration supporting the person’s case to remain in Australia.
Disclaimer: This information is general in nature and does not constitute immigration or legal advice. Section 501 matters are complex and highly time-sensitive. Review and revocation rights depend on the particular statutory provision, decision-maker and circumstances of the individual case.