Why an Australian Visa Can Be Cancelled Under the Character Test

Section 501 of the Migration Act 1958 gives the Minister for Immigration the power to refuse or cancel a visa on character grounds. Failing the character test is one of the most serious reasons a person’s visa may be cancelled, leading to significant consequences. This article outlines the scope of the character test and explains its application in visa cancellation matters.

What Is the Character Test Under Section 501?

The character test is a provision within Australian immigration law that assesses a non-citizen's past and present conduct to determine if they are of good character.

Legal Basis: Section 501 of the Migration Act

Section 501 of the Migration Act provides the legal framework for refusing to grant a visa or cancelling an existing one on character grounds. The test operates as a statutory threshold. If a person does not pass the character test, the Minister (or a delegate) has the authority to make a decision against them.

How a Person Fails the Character Test

Section 501 (6) of the Migration Act sets out the specific grounds for failing the character test. A non-citizen will not pass the character test if they have a substantial criminal record, have been convicted of an immigration detention offence, are associated with groups or individuals reasonably suspected of criminal conduct, have been involved in people smuggling or trafficking, or are otherwise considered to pose a risk to the Australian community.

A ‘substantial criminal record’ is a key component and is defined as having been:

• Sentenced to death or imprisonment for life.
• Sentenced to a term of imprisonment of 12 months or more.
• Sentenced to two or more terms of imprisonment where the total is 12 months or more.
• Acquitted of an offence on the grounds of unsoundness of mind or insanity and, as a result, detained in a facility or institution.

Mandatory vs Discretionary Cancellation

Visa cancellation decisions under Section 501 are either mandatory or discretionary.

Discretionary cancellation under Section 501(2) allows the Minister or their delegate to cancel a visa if they are satisfied the visa holder does not pass the character test.

Mandatory cancellation under Section 501(3A) removes this discretion. It compels the Minister to cancel a visa if the holder has a substantial criminal record and is serving a full-time sentence of imprisonment.

Key Reasons a Visa May Be Cancelled or Refused

The primary focus of Section 501 is preventing non-citizens who may pose a risk from entering or remaining in Australia. The following factors are central to these decisions.

Criminal Convictions and Sentences

A substantial criminal record is a primary reason for failing the character test. This includes sentences for serious offences resulting in imprisonment of 12 months or more, life imprisonment, or multiple terms of imprisonment.

Association With Criminal Conduct or Groups

A person may also fail the character test if they associate with a person, group, or organisation reasonably suspected of being involved in criminal conduct. This provision allows decision-makers to consider associations that could link an individual to activities like harassment, intimidation, or inciting discord.

Past and Present General Conduct

The applicant's past and present criminal and general conduct is considered. Even without a criminal conviction, a visa may be refused or cancelled if the Department of Home Affairs has reason to believe there is a significant risk of future harmful or unlawful behaviour.

Risk to the Australian Community

Ultimately, a core consideration is whether a non-citizen poses a direct or indirect risk to the safety and welfare of the Australian community. The Australian Security Intelligence Organisation (ASIO) may provide a security assessment that finds a person to be a risk to national security, which would lead to visa refusal or cancellation.

Who Is Most at Risk of Visa Cancellation?

Certain groups face a heightened risk of visa cancellation under the character provisions.

Temporary and Permanent Visa Holders

Temporary visa holders, such as those on a bridging visa or student visa, are at a higher risk of having their visas cancelled because their right to remain in Australia is often conditional. Permanent visa holders may also face cancellation, particularly if they commit serious offences after being granted their visa.

Long-Term Residents With Criminal Records

Long-term residents who are not Australian citizens can still be subject to visa cancellation if they fail the character test due to a substantial criminal record, regardless of how long they have lived in Australia.

What Happens After a Character-Based Cancellation or Refusal?

The process following a character-based visa cancellation or refusal involves several formal steps and serious consequences.

Notice of Intention to Consider Cancellation (NOICC) and Your Response

Before a visa is cancelled, the Department of Home Affairs typically sends a Notice of Intention to Consider Cancellation (NOICC). This is a formal notification stating the grounds for potential cancellation. You must respond promptly, providing reasons and evidence why your visa should not be cancelled.

Appeals to the ART or Ministerial Intervention

If your visa is cancelled, you may have the right to have the decision reviewed by the ART. The ART will re-evaluate the decision based on the facts and merits of your case. It is important to note that not all decisions under Section 501 are reviewable by the Tribunal. In some circumstances, a request for personal intervention from the Minister may be the only option.

Consequences: Detention, Removal, and Re-Entry Bans

Visa cancellation leads to severe consequences, including immigration detention and removal from Australia, a potential restriction on re-entering Australia for a period or permanently, and the loss of permanent residency status.

How to Protect Your Visa Status

Protecting your visa status requires proactive and careful management of your legal obligations.

Stay Informed About Your Obligations

Being informed about your legal obligations as a visa holder is crucial. It is essential to understand the conditions of your visa and to avoid situations that could put it at risk.

Seek Early Legal Advice

If you have a criminal record or are currently facing legal issues, seeking professional legal advice is essential. Timely guidance from an experienced lawyer can assist in responding to a Notice of Intention to Consider Cancellation and maximise your prospects of preserving your lawful status in Australia. Contact Australian Migration Lawyers for expert assistance.

Cooperate With Departmental Requests

Cooperating with the Department of Home Affairs and responding to any requests and notices immediately and thoroughly also helps safeguard your visa status.

Final Thoughts

Understanding the grounds on which your visa can be cancelled is essential for maintaining compliance and avoiding serious legal issues. If your visa is at risk of cancellation, obtaining legal guidance at the earliest opportunity is critical to navigating the process effectively. The team at Australian Migration Lawyers has extensive expertise in handling complex character matters and can provide tailored support.