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Section 501 visa cancellation
Everything you need to know about the Section 501
In certain circumstances the Migration Act 1958 (Cth), the legal instrument which broadly frames and empowers Australia’s immigration processes, applies in a way that can result in an individual’s visa being cancelled. One common situation that can result in visa cancellation is when an applicant no longer meets Australia’s character requirements, a fundamental obligation imposed on all visa holders. These character requirements and the power for a visa to be cancelled are outlined in section 501 of the Migration Act.
When individuals have their visa cancelled, this can be an immensely stressful time for individuals and their families.
It is important that individuals subject to a visa cancellation under section 501 understand the character requirements, how section 501 applies to their circumstances and what next steps they are able to take if they wish to remain in Australia.
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What is a section 501 visa cancellation?
Section 501 of Migration Act outlines the character requirements for Australian visas. Any individual who holds an Australia, irrespective of whether they are a temporary or permanent visa holder, must meet these character requirements. Only the Minister personally or their delegate can cancel a visa under section 501. Under section 501, there are circumstances where the Minister or their delegate may exercise their discretion in cancelling a visa as well as circumstances which invoke mandatory cancellation. In considering an individual’s character under section 501, an individual’s past and present criminal conduct and an individual’s past and present general conduct can be considered.
A section 501 cancellation can result in an individual becoming unlawful, being detained in immigration detention, removed from Australia or being unable to make a future visa application. Individuals should be aware that the section 501 character requirements, while listing specific circumstances and considerations, are also influenced by government policies and a ministerial direction, which can affect how section 501 is interpreted and applied.
In what circumstances are Section 501’s issued?
There are several circumstances that may result in an individual failing the character test and be deemed to be no longer of good character under section 501.
A decision maker must cancel a visa on character grounds in certain situations. These situations include where an individual has a substantial criminal record (including sentences totalling twelve months or more) or have been found guilty of a sexually based offences involving a child.
A decision maker may cancel a visa if the decision maker reasonably suspects that the individual does not pass the character test and the minister is satisfied that the cancellation is in the national interest. The character test is outlined in section 501 of the Migration Act. Some common circumstances of when a person does not pass the character test include:
- The individual has a substantial criminal record (defined by being sentenced to 12 or more months in prison or was otherwise not fit to be imprisoned)
- The individual has been convicted of offences while in immigration detention (including escaping from immigration detention)
- The individual has been involved in an organisation engaging in criminal conduct
- The individual has or is reasonably suspected of being involved in international crimes including people smuggling, people trafficing, genocide, a war crime or a crime against humanity
- The individual has been subject to an adverse or qualified security assessment by ASIO or if there is an Interpol notice in force against them.
When cancelling a visa, decision makers will also refer to a ministerial direction in coming to their decision. This requires decision makers to consider a variety of matters including:
- The protection of the Australian community
- The best interests of any children in Australia
- The impact of visa refusal or cancellation on the individual’s family in Australia
- Any impact on Australian business and community interests.
An Australian Migration Lawyer can help individuals understand how the character test applies and the decision making process that occurs when a section 501 cancellation is made, so contact us for assistance when required.
What to do and how to respond to receiving a Section 501 letter
When an individual receives a visa cancellation notice pursuant to section 501, it can be immensely stressful. Individuals should take time following the receipt of this notice to read it carefully and understand how the decision is or has been made. Furthermore, the letter will outline the effects of the notice, including consequences of the visa being cancelled if it has been and any available review rights. Individuals after reading the notice should consider the options available to them, especially if they wish to remain in Australia rather than face removal. This may include providing a strong detailed response to the Department or seeking review of the decision.
Individuals should be aware that reviewing a visa cancellation involves tight timeframes, so it is imperative that assistance is sought in a timely manner from an Australian Migration Lawyer. An Australian Migration Lawyer can then assist individuals with challenging visa cancellation decisions. This includes assisting them drafting a strong response or representing them at Australia’s administrative review tribunal and in Australia’s Federal Courts if necessary.
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Example a Section 501 letter and what it means
Australian Migration Lawyers have provided an example of an Notice of Intention to Consider Cancellation received by a non-citizen who failed the character test. Some information in the example has been redacted for privacy reasons.
Individuals viewing the example can identify how the notice is divided. The first section of the letter states the preliminary information relating to the visa cancellation, including when correspondence occurred and the applicable law to the individual's position.
The second section of the notice outlines the particular grounds on which the decision is being made. The third section of the notice outlines the consequences of the notice and visa cancellation and any applicable review rights.
Individuals should be aware that this example is for illustrative purposes only and may not be precisely the same as the correspondence that they have received.
Benefits using a Migration Lawyer
At Australian Migration Lawyers, we are experienced and knowledgeable in helping individuals deal with visa appeals and cancellations. This includes where applicants have received notices outlining the Department’s intention to refuse or cancel a visa where the minister reasonably suspects an individual fails the character test. An Australian Migration Lawyer can help individuals understand how section 501 operates, how it applies to their circumstances and provide relevant advice on the available pathways should the individual wish to challenge the decision and remain in Australia.
This includes providing representation to clients at Australia’s administrative review tribunal where necessary. At Australian Migration Lawyers, we understand how anxiety-inducing and emotionally challenging having a visa cancelled can be, so we are committed to assisting applicants navigate through this process with confidence.
Frequently asked questions
Read our most frequently asked questions.
What is the 501 policy in Australia?
In Australia, section 501 of the Migration Act refers to the character requirements for an individual holding an Australian visa. This section’s application is influenced by Australian Government policy and a ministerial direction. Simply put, section 501 highlights that in order to receive and hold an Australian visa, an individual must meet Australia’s character requirements.
What is the character test?
The ‘character test’ refers to a set of circumstances outlined in section 501 that indicates if an individual passes the character test or fails to meet Australia’s character requirements. Non-citizens who fail the character test will fall into one of the circumstances described in section 501. Some of these circumstances are detailed above.
Can I appeal a 501 visa cancellation?
Individuals should be aware that they are able to appeal a section 501 visa cancellation. It is recommended that if an individual wishes to appeal their decision either in Australia’s administrative review tribunal or in the Australia Federal Courts, they should seek legal advice from an Australian Migration Lawyer.
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About the content author
Perry Q Wood is Immediate Past President of the Australian Institute of Administrative Law and one of Australia’s leading administrative and migration lawyers. To date, he has been involved in 1,000+ migration and refugee matters.
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