Cancellation or Refusal on Character Grounds

Summit Migration regularly assists visa holders who have had their visas cancelled or refused if the Minister or delegate of the Minister is not satisfied that the visa applicant passes the character test.

Under Section 501(3A) of the Migration Act 1958 (Cth), the Minister or the delegate must cancel a visa that has been granted if:

(a) the Minister is satisfied that the person does not pass the character test because of the operation of:

(i) the person has a substantial criminal record (i.e. sentenced to a term of 12 months imprisonment or more); or

(ii) the person is convicted of one or more sexually based offences involving a child; and

(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, State or a Territory.

While unfortunately there isn’t any possibility for review of this mandatory cancellation obligation the Migration Act 1958 (Cth) provides under section 501CA a power to revoke this decision.

Visa holders who have had their visa cancelled under Section 501 will receive a letter from the Department of Home Affairs advising you that their visa is cancelled. 

This letter provides strict time limits to apply for revocation to the Administrative Appeals Tribunal. Specifically, the letter notes you have

• 28 days if a staff member from the Department handed you the letter; or
• 35 days if the Department posted you the visa cancellation letter.

If you don’t apply before the deadline, then you will not be eligible to apply for revocation of the visa cancellation decision. This is a firm limitation date. If you miss it you will be deported once your custodial sentence has finished.

The Department of Home Affairs still has the power to cancel your visa on ‘character grounds’ and if the Department of Home Affairs chooses to use this power, you may receive a letter called a ‘Notice of Intention to Consider Cancelling your Visa’.

Even if you apply for a revocation of the decision, you still have two options available to you.  These options are:

• Applying to the AAT within 9 days of the Department denying your revocation request; or
• appeal the Minister’s decision in the Federal Court of Australia, but you must have the grounds to do so.

However, if it was the Minister who directly made the decision, you are barred from going to the AAT and then your only option is to appeal directly to the Federal Court.

If you are in Immigration Detention or Custody and you suspect your visa has been cancelled, you should contact an Immigration Lawyer immediately to assist.