Visa cancellations are not a concept that has been unheard of previously. There have been many instances wherein applicants have faced difficulties with their visa application for Australia - many of whom received help and approval later on. 

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The reasons the Department of Home Affairs cancels or refuses a visa to an applicant, from incomplete applications to a potential sponsor’s credibility. However, in this article, we are going to discuss Section 501 (s501) visa cancellations and the underlying complexities pertaining to it. 

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Understanding Section 501(3A) of the Migration Act 1958

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Section 501 of the Migration Act was implemented in 1958 as an update and replacement of the Immigration Restriction Act 1901 - which was infamous for discriminatory provisions such as the dictation test. While there have been minor amendments to the Migration Act 1958 in the forms of the Migration Act 1966, the overall structure remains the same and relevant today. 

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Section 501 of the Migration Act 1958 specifically pertains to the refusal or cancellation of a visa on character grounds. This gives a Minister from the Department of Immigration the right to cancel or refuse a visa application on the grounds that an individual does not meet the character requirements of Australia. It is generally a discretionary power - meaning that the decision will usually be taken by the Minister who has been assigned an individual’s case, rather than the court, government, delegates, etc. 

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There are various subsets under Section 501 that elaborate on the conditions, kinds and degrees to which an applicant may potentially not meet the stipulated character requirements. 

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The possibility of implementing this ruling is applicable to everyone - from visa applicants to current visa holders in Australia, both temporary and permanent. 

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The Decision-Making Process 

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The decision-making process for visa cancellation under Section 501 is divided into 2 stages. During the 1st stage, the Minister must determine whether the individual passes the character test, which is mentioned in detail in Subsection 501(6). In this context, the character test is referred to as the “threshold test for refusal or cancellation”. 

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Upon reviewing the individual’s case, if the Minister is satisfied that the threshold test requirements have been met, this leads to the 2nd stage of the decision-making process. At this point, the Minister will be required to determine whether they should exercise their discretion to refuse/cancel the individual’s visa. The Minister holds personal powers in the form of Sections 501A and 501B. These effectively enable the Minister to overrule any initial decision made by a delegate or the Administrative Appeals Tribunal in relation to the particular case. 

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Grounds for Section 501 Visa Cancellation 

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Section 501 dictates that an individual will not pass Australia’s character requirements test if they fall under any of the grounds that have been specified below. These grounds are 5 branches, under which various subsections are included. The 5 branches are: 

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• A conviction for immigration detention offences 
• Past and present criminal or general conduct 
• Substantial criminal record 
• Association with a person/people suspected of engaging in criminal conduct 
• Significant risk of particular types of future conduct 

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Section 501(3A) 

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Section 501(3A) allows the Minister to exercise the right to refuse/cancel an individual’s visa if:

1. The individual has been sentenced to 12 months or longer imprisonment (a full-time custodial sentence) or 
2. The individual has been found guilty of a sexually-based crime involving a child or
3. The individual bears a substantial criminal record 

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In such scenarios, the Minister or the Department of Home Affairs will be required to immediately terminate the individual’s visa - this is also known as mandatory visa cancellation. 

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Substantial Criminal Record 

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If an individual meets the criteria for a substantial criminal record, then the Minister exercises the mandatory cancellation power under Section 501(3A). 

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Section 501(7) defines what exactly defines a substantial criminal record. If the individual has been: 

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• Sentenced to death; or 
• Sentenced to life imprisonment; or 
• Sentenced to an imprisonment term of 12 months or more; or
• Sentenced to 2 or more imprisonment terms where the total is 12 months or more; or 
• Acquitted of an offence on the grounds of unsoundness of mind or insanity and has been committed to a facility or institution; or
• Found guilty by a court to not be fit to plead, in relation to an offence; and the court has nonetheless found evidence of the offence, and the individual has been detained in a facility or institution 

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Subsections 501(1) and 501(2) 

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There are highly specific grounds on which an individual’s visa can be refused/cancelled by the Minister in charge of the case. 

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A person’s visa may be refused/cancelled under Subsections 501(1) or 501(2) if:

1. The Minister reasonably suspects that the person does not pass the character test and
2. The person does not satisfy the Minister that he/she/they pass the character test

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The power under Subsections 501(1) and 501(2) can be exercised either by the Minister or by a delegate of the Minister. 

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Subsection 501(3) 

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A person’s visa may be refused/cancelled under Subsection 501(3) if:

1. The Minister reasonably suspects that the person does not pass the character test and
2. The Minister is satisfied that the refusal/cancellation of the visa is in the national interest 

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While the term ‘national interest’ is not completely defined in the Act, it means that the discretionary power to exercise visa cancellation/refusal is dependent solely on the Minister. 

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Mandatory Visa Cancellation

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As mentioned above, under certain circumstances, the Minister or the Department of Home Affairs will immediately terminate the visa of an incriminated individual. 

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For such a case, the Department of Home Affairs will first be notified of the individual’s case and criminal record. Upon analysis and determining if the individual meets the threshold test for refusal or cancellation, the Department will send a ‘Notice of Visa Cancellation’ to the individual, informing them of the termination of their visa. 

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Along with the notice, the individual will also receive a revocation request form, a personal details form, a copy of Ministerial Direction No. 90 and a prepaid envelope addressed to the Department of Home Affairs. 

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The individual can appeal for revoking the mandatory cancellation by approaching the Administrative Appeals Tribunal. If the Administrative Appeals Tribunal are satisfied that the individual does pass the character test or finds another reason for revocation, the mandatory cancellation may be revoked. In this case, the individual will get their visa back. 

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It is important to note that the individual has 28 days to apply for revocation from the date of the notice. If the notice was sent to the individual by post, they will have 35 days to apply for revocation. 

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If however, the individual’s visa is cancelled and your plea for revocation is not granted, there are 2 remaining options. The individual can either apply for another visa to remain in Australia or they will have to leave Australia and return to the country of which they are a citizen. 

Considerations for Visa Cancellation/Refusal 

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In the Migration Act 1958, Direction No. 55 provides a list of primary and secondary considerations that must be taken into consideration while determining whether an individual’s visa should be cancelled or not. 

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The primary considerations are:

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• The protection of the Australian community from criminal or other serious offences 
• The best interests of minor children in Australia 
• Whether Australia owes international non-refoulment obligations to the individual 
• The strength, duration and nature of the individual’s ties to Australia 

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Other considerations must be taken into account as well for determining the refusal/cancellation of an individual’s visa. These considerations may hold lesser weightage as compared to the primary considerations, and they focus on the impact of visa refusal/cancellation on: 

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• The individual’s immediate family members who are residing in Australia
• Australia’s business interests 
• Members of the Australian community - this includes any victims of the individual’s criminal behaviour and those victims’ families 

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In case an individual’s visa is cancelled, there are additional considerations to be taken under Direction No. 55. This focuses on “the extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards in the light of”:

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• The individual’s age 
• The individual’s health 
• Any significant cultural or language barriers 
• Any social, medical and/or economic support available to them in their home country

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International Non-Refoulment Obligations 

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If an individual entered Australia as a refugee or on a special humanitarian visa, there may be another special consideration made for their case. 

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Australia has long-standing non-refoulment obligations under the 1951 Convention pertaining to the Status of Refugees; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; and the International Covenant on Civil and Political Rights and its 2nd Optional Protocol. These Acts are of significant response to delegates, Ministers and the Department of Home Affairs as they reflect Australia’s interpretations of the obligations and certain bylaws that must be followed. 

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Individuals can plead for the revocation of their visa cancellation/refusal by explaining that if they are forced to leave Australia and return to their home country, they may encounter issues such as persecution, the death penalty, torture, inhuman and degrading treatment or punishment. An individual may fear these actions on account of their nationality, membership in a particular social group, religion, race, sexual orientation, etc. Such matters can be further discussed with immigration lawyers who can aid in solidifying the individual’s plea. 

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Disclaimer: Kindly note that the information provided here does not constitute legal advice. This must solely be regarded as content that provides general immigration information and is not a substitute for professional legal advice that occurs between an immigration lawyer and a client. 

Path Migration strongly recommends readers to contact certified immigration lawyers for a holistic overview of the Australia immigration system and a detailed analysis of each case.