Section 501 of the Migration Act 1958 (the Act) is a provision of Australian Immigration law that enables the Department of Home Affairs (Department) to refuse or cancel a visa if the visa applicant (or visa holder) does not pass the “character test”.
There are numerous ways with which a person could not pass the “character test”, which broadly speaking relates to a person being convicted of certain offences, or having undertaken certain actions.
This is outlined in further detail below, along with detail of what happens when a person may not meet the “character test”.
Who does Section 501 affect?
s 501 applies to all visa applicants, and all visa holders in Australia (temporary and permanent).
Even after being granted a visa, a person can have their visa cancelled if they later do not satisfy the “character test”.
What is the character test?
There are numerous ways with which a person would “fail” the character test. The most common is when a person has a “substantial criminal record” (outlined further below), but also includes instances where:
- the person was convicted of an offence while the person was in immigration detention (or duration an escape, or following an escape from immigration detention);
the person was convicted of escaping from immigration detention (under s 197A of the Act);
the Minister reasonably suspects that:- the person is or has been (or has had an association with) a group or organisation and
- the group, organisation or person has been or is involved in criminal conduct;
- the Minister reasonably suspects (whether or not the person has been convicted of an offence constituted by the conduct) that the person is or has been involved in conduct constituting one or more of the following:
- an offence related to people smuggling (under s 233A to 234A of the Act);
- an offence of trafficking in persons;
- the crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern
- having regard to either or both the person’s past and present criminal and general conduct – the person is not of good character;
- if the person was allowed to enter or remain in Australia, there is a risk that the person would: engage in criminal conduct; harass, molest, intimidate or stalk another person in Australia; vilify a segment of the Australian community; incite discord in the Australian community or in a segment of that community; or represent a danger to the Australian community (or a segment of that community) whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way;
- a court has convicted the person of one or more sexually based offences involving a child or found the person guilty of such an offence (or found a charge against the person proved) even if the person was discharged without a conviction;
- the person has been charged with (or indicted for) one or more of the following: genocide, crime against humanity, a war crime, a crime involving torture or slavery, a crime that is otherwise of serious international concern;
- the person has been assessed by ASIO to be directly or indirectly a risk to security (within the meaning of s 4 of the ASIO Act 1979); or
- an Interpol notice in relation to the person, from which it is reasonable to infer that the person would represent a risk to the Australian community or a segment of that community is in force.
What is a substantial criminal record?
A “substantial criminal record” is defined in the Migration Act as where the person has been:
- sentenced to death;
- sentenced to imprisonment for life;
- sentenced to a term of imprisonment of 12 months or more;
- sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
- acquitted of an offence to the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
- found by a court to be not fit to plead, in relation to an offence, and the court has nonetheless found that on the evidence available the person committed the offence, and as a result, the person has been detained in a facility or institution.
Most non-citizens who fail the character test, will do so as a result of having been sentenced to a term (or terms) of imprisonment for 12 months or more.
For the purposes of the character test, where a person has been sentenced to 2 or more terms of imprisonments to be served concurrently (whether in whole or in part), the whole of each terms is to be counted in working out the total of the terms. For example, if a person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently – for the purposes of the character test, the total of those terms is 6 months.
How do I prove whether or not I pass the character test?
For visa applicants, this typically occurs in the following ways:
- nearly all visa applications have a character declaration section for individuals to disclose character issues;
- certain visas (including all applications to become a permanent resident) requires the individual to provides police clearances from every country that they’ve resided in for 12 months or more in the past 10 years (or from countries where issues are disclosed).
There are also information sharing regimes between Australia and other countries, law enforcement or intelligence agencies, open source information and media articles, in addition to “dob in” hotlines. In circumstances where it’s been found that a person failed to disclose a certain offence, it could lead to worse consequences (such as visa refusal and/or cancellation).
Once an individual has already been granted a visa, subsequent character issues could be discovered either at time of renewal of these visas, or in certain circumstances, the police may notify the Department of these offences which could cause them to engage the visa cancellation process.
It’s important to consider the above and identify an impending s 501 decision.
What if I do not pass the character test?
An assessment is first made as to whether a person actually “fails” the character test. In circumstances where a person clearly does not pass the character test (or is deemed by the Department not to satisfy the character test), then consideration would be given as to whether a visa application should be refused, or a visa should be cancelled.
Such a decision can be made by:
- a delegate at the Department with notice to the visa applicant/holder to allow them to comment; or
- the Minister personally without notice (if satisfied that it is in the “national interest” to do so).
There are certain circumstances where a visa must be cancelled, and the person must apply for the cancellation decision to be revoked.
Where such a decision is being considered, notice would be given to the applicant/visa holder via a Notice of Intention to Consider Cancellation (NOICC) or a Notice of Intention to Consider Refusal (NOICR). You would then have 28 days to make relevant representations as to why your visa should not be cancelled or refused.
We have a separate blog here, which outlines what happens:
- when character is being considered for visa refusal/cancellation; and
- what is (and must be) considered in determining whether or not to refuse/cancel a visa on character grounds (which relevantly includes the appropriate Ministerial Direction 99).
What if my visa is refused or cancelled on character grounds?
Your options depend on the circumstances around your visa refusal/cancellation. If your visa is:
- refused – you are able to appeal this refusal to the Administrative Appeals Tribunal (Tribunal) if you’re in Australia. If you’re outside Australia, it depends on your circumstances; or
- cancelled – you may be able to apply for revocation of the cancellation decision either to the Delegate, or the Minister directly.
Non-revocation decisions made by a Delegate (as opposed to the Minister) can be appealed to the Tribunal.
The Tribunal cannot review decisions made by the Minister personally to cancel or to refuse the grant of a visa (or not to revoke a visa cancellation). These decisions may be appealed to the Federal Circuit and Family Court of Australia (FCFCA) if there is a reviewable error – whether you are inside or outside of Australia.
There are strict timeframes that apply to revocation requestion and appeals (to the Tribunal or court).
The Minister also has the power to set aside a Delegate or Tribunal decision (and replace it with a personal decision to refuse/cancel a visa) if satisfied it is in the national interest to do so.
Are there any other consequences if my visa is refused or cancelled on character grounds?
If your visa is cancelled while you are in Australia, you would become an “unlawful non-citizen” and may be taken into immigration detention. If you don’t exercise your appeal options (either via revocation or suitable application to the Tribunal/courts), or have exhausted them, you would be liable to be removed from Australia.
In addition to the visa refusal/cancellation on character grounds (s 501), there are numerous other immigration consequences. These include:
- a prohibition on applying for other visas if the affected person is in Australia (other than a protection visa or a Bridging Visa R) – see s 501E of the Act;
- all other ongoing visa applications (other than a Protection visa) being refused or cancelled – see s 501F of the Act; and
- for individuals with visa cancellations – the inability to be granted a visa to Australia in the future (unless the cancellation is revoked) – see Special Return Criteria (SRC) 5001.
For certain visa applications, if one person does not satisfy the character test, it may affect the remainder of the family as well.
Conclusion
The Department have broad powers when it comes to character cancellations or refusals. Given the complexity in addressing character concerns and the potential serious ramifications if not addressed properly, it’s often worth seeking professional advice about what to do.
Hannan Tew Lawyers have assisted numerous individuals with character issues of varying severity. We generally recommend that individuals book a consultation to discuss their circumstances here. Our fee of $385-$440 incl GST includes a one hour discussion, and written advice following.
Please feel free to contact us by email at [email protected] or phone +61 3 9016 0484 if you would like assistance.
