Having your visa cancelled under SECTION 501 OF THE MIGRATION ACT 1958 can be a distressing and confusing experience. It’s essential to understand the reasons behind such cancellations and the processes involved. MINISTERIAL DIRECTION 110 is a good place to start, providing valuable guidance on how decisions are made regarding visa cancellations, offering important insights into your situation.
Section 501 of the Migration Act 1958 gives the Australian government the power to cancel a visa if the visa holder fails the Character Test.
WHAT IS THE ‘CHARACTER TEST’?
The CHARACTER TEST assesses various factors, including criminal convictions, association with criminal organisations, and behaviours deemed contrary to the public interest.
If you have had your visa cancelled under Section 501, it means that the government has determined that you do not meet the required character standards to stay in Australia.
You will not pass the Character Test if you have been sentenced to a term of imprisonment that for 12 months (1 year) or longer. In these circumstances, the Department of Home Affairs must automatically cancel your visa.
If your visa has been cancelled but you want to stay in Australia, your next steps are to request for the cancellation to be revoked, and your visa reinstated. In deciding whether to revoke the cancellation, the decision-maker (an agent of the Australian government) will be guided by Direction 110.
MINISTERIAL DIRECTION 110, issued by the Minister for Home Affairs in June 2024, to replace its predecessor, Direction 99, provides guidance on the considerations and processes involved in visa cancellation decisions, including those under Section 501.
Direction 110 outlines the factors that delegates of the Minister must take into account when assessing your character and determining whether cancellation is warranted. Direction 110 emphasises the importance of procedural fairness, ensuring that your rights are respected throughout the cancellation process.
Direction 110 articulates several considerations that must be considered, the five of which are considered the ‘Primary Considerations’:
After you have been taken to have received the Notice of Cancellation, you have 28 days to make a request for revocation of the decision. As such, it is crucial to seek legal advice from a qualified immigration lawyer as soon as possible after your visa cancellation. We at Sambi Legal can help you understand the reasons for the cancellation, assess your options for appeal or review, and guide you through the process.
In preparation for your revocation request, or after having made such, you will be in a position to provide information and materials to the Department demonstrating why the cancellation decision should be revoked. The following are some examples of materials that may benefit your revocation request:
CHARACTER REFERENCES from employers, colleagues, or community members attesting to the your good character and why the cancellation should be revoked;
PROFESSIONAL REPORTS from psychologists, counsellors, or other professionals that provide insight into your behaviour and rehabilitation efforts;
A detailed PERSONAL STATEMENT from you and/or your friends and family, explaining the circumstances of your offending, your ties to Australia, your family and children (if applicable) and other factors;
SUBMISSIONS articulating the circumstances, summarising and referring to the evidence provided, and ultimately explaining why you should be successful in your revocation request.
The provided material and submissions should be framed in the context of Direction 110.
After providing all of your supporting materials and information to the Department, if they make a decision not to revoke your cancellation, you may make a merits review application to the Administrative Review Tribunal (the ‘ART’). This must be done within 28 days of receiving the decision notice.
At the Tribunal, you will be permitted to provide updated and new information/material to support your case. After all material has been provided, the Tribunal will conduct a formal hearing in which you can present evidence, call witnesses and make submissions.
The Tribunal will consider all evidence provided and will make a ‘fresh’ decision on the merits of your case. This means that the Tribunal should not be affected by the Department’s decision.
WHAT’S NEXT?
Facing a visa cancellation under Section 501 can be a daunting experience, but it is important to remember that you have rights and options available to you. By understanding the reasons for your visa cancellation, contacting our office, and following the appropriate procedures, you can take proactive steps to address your situation and work towards a resolution.
Remember that you are not alone, and we at Sambi Legal have substantial experience assisting people who have had their visa cancelled.
Please contact our office urgently if your visa has been cancelled or you the Department have notified you that they will not be revoking a cancellation.
A PROTECTION VISA is a classification of Australian visa that allows people to stay in Australia when they are seeking asylum and are owed the Australian protection obligations. In Australia, there are two different types of Protection Visas available for those in need:
Every person’s circumstances are different, and there are innumerable factors for consideration when determining your best Visa pathway. Ultimately, it will always be the decision of the Visa Applicant to determine what Visa they wish to apply for – however, advice from specialised and experienced Migration Lawyers (such as those at Sambi Legal)) can help you ensure that you are making an educated, informed, and cost-effective decision that offers you the best prospects of a positive outcome.
Understanding the differences to the Protection Visas is crucial when figuring out which Visa to apply for. As the names suggest, the Temporary Protection Visa enables you to stay in Australia temporarily (for a period up to three years), whereas the Permanent Protection Visa allows you to permanently stay in Australia as a Permanent Resident.
The primary difference in the eligibility requirements for these visas are that the Temporary Protection Visa is for immigrants who arrive in Australia without a visa and are seeking asylum, unlike the Permanent Protection Visa – which is for immigrants who arrived in Australia on a different, valid Visa; but now wish to seek asylum.
Whilst the protection obligations owed by Australia and the eligibility requirements for these visas are very similar, this article will focus on the Permanent Protection Visa (Subclass 866).
In order to engage Australia’s PROTECTION OBLIGATIONS, the applicant needs to be a refugee according to the Migration Act 1958 (Cth) (‘the Act’).
In short, a refugee is someone who is outside their home country and because of a ‘well-founded fear of persecution’, is unable or unwilling to return to their home country or seek protection from that country. In addition to the existence of a ‘well-founded fear of persecution’, there needs to be a real chance of present persecution and as such, past persecution may be used to establish the existence of a well-founded fear, but alone is not enough to make someone a refugee.
The Act specifies five particular reasons someone may have a well-founded fear of persecution, namely they must fear serious harm because of their: race; religion; nationality; membership of a particular social group; or political opinion. As examples, our office have assisted people obtain Protection Visas because they were political dissidents of their home country, were homosexual and feared persecution because of the home country’s societal expectations, etc. It is important to note that the ‘real chance of persecution’ must relate to everywhere in the country and not only a specific area.
A further criterion of having a ‘well-founded fear of persecution’ is that the persecution feared must involve both ‘serious harm’ to the person and ‘systematic and discriminatory conduct’. The definition of ‘serious harm’ includes many things such as a threat to liberty, physical harm, significant economic hardship, denial of basic needs, etc. Additionally, for the persecution to be systematic and discriminatory, it needs to be specifically targeted against the person (or a member of their family) and affects the person (or their family member) in such a way that singles that person out from the broader community.
Through our extensive experience in assisting in both applications and appeals for clients seeking to obtain and/or keep their Protection Visa, our office has repeatedly seen and can confirm that difficulties of whether someone engages Australia’s protection obligations tend to arise when they have not taken all possible steps to help avoid or remedy the threats to their protection.
If you have a right to enter and reside in a different country where you would not face persecution or significant harm, and you have not tried to exercise that right, you may not be taken to be a refugee.
There are a long list of other requirements relating to the grant of a Permanent Protection Visa, such as those that relate to health and character.
This article will not identify every requirement, however, provides the following list of hurdles often faced by our clients before they come to us for assistance; and which may jeopardise your Protection Visa application:
It is important to note that the Department Of Home Affairs (being the relevant Department of the Australian Government) will consider all of your circumstances, even if you appear to fall short of any requirements discussed here. In fact, even if you do not meet the health and Character Requirements, your Permanent Protection Visa may still be granted – so it is paramount to always seek advice from experienced professionals, who know the ins-and-outs of Immigration Law in Australia, and can help you obtain the best possible outcome for you and your loved ones.
A PARTNER VISA is a classification of Australian visa that allows people to stay in Australia when they are in a romantic relationship with an Australian Citizen, Australian Permanent Resident, or an eligible New Zealand Citizen. Applying for an Australian Partner Visa can often be time-consuming and complicated due to the significant amount of material and information that must be provided to the Department of Home Affairs (Australian Government) (‘the Department’) for your application to be properly progressed.
In Australia, there are many different types of Partner Visas available, including:
The differences between Australian Partner Visas depend mainly on whether the applicant is applying from overseas and whether they already hold a different partner visa.
The Prospective Marriage visa, whilst technically not a Partner Visa, allows an applicant to travel to Australia for 9–15 months so that they may marry their partner who holds Australian citizenship, permanent residency, or eligible New Zealand citizen.
Irrespective of which partner visa you or your partner needs to apply for, there are similar requirements that need to be met in order to have a successful application.
In short, an applicant and their Sponsor (the Australian partner) needs to satisfy various character requirements, health requirements, relationship requirements and more.
To be eligible for a Partner Visa, the applicant will first need to satisfy the HEALTH REQUIREMENTS provided by the Department; and both the applicant and Sponsor will need to satisfy the CHARACTER REQUIREMENTS.
This article will not list all relevant Health & Character Requirements. However, we encourage you to contact our office for a free Initial Consult if any of the following risk-factors apply to your circumstances; as it is possible that you will fail to meet the necessary Health & Character Requirements:
When applying, it is important to disclose all criminal conduct you and your partner have engaged in and answer all questions truthfully. Please also note that the applicant may also be required to undertake a health examination.
You should note that the Department Of Home Affairs will consider all of your circumstances. This means that, even if you and your partner do not meet the health and character requirements, a Partner Visa may still be granted.
The Department will consider the totality of your relationship, whether onshore or offshore. Being married is not a guarantee for obtaining an Australian Partner Visa; and not being married does not mean you cannot obtain one.
For applications regarding onshore Partner Visas, you and your partner will need to either be married or in a de facto relationship.
For offshore partner visas, you and your partner need to either demonstrate an intention to enter into a de facto or spousal relationship; or be married already.
In determining a de facto relationship, you and your partner will have needed to be in a relationship of 12 months (not including the “period of dating”); and either live together, or at least live not permanently apart.
There are some exceptions to the 12 months of relationship requirement – such as if there are compelling and/or compassionate circumstances for the applicant to be granted the Visa; or if you have both registered your relationship with the appropriate Australian authority.
To demonstrate the status of your relationship to the Department, your application for a Partner Visa will need to address several Relationship Requirements as further elaborated upon below. You must provide evidence towards the Relationship Requirements even if you are married, or have been in a de-facto relationship for a substantial amount of time.
In assessing whether you and your partner meet the required relationship status for a Partner Visa, the Department will look at what evidence you have provided in support of the the following RELATIONSHIP REQUIREMENTS:
The nature of your household and living arrangements may include whether you both have children or share support for children/family members, if you share the responsibility for household duties and chores, and/or if you live together, etc.
The financial aspect of your relationship will encompass whether you jointly have any assets or liabilities, if you share joint bank accounts and how you both use them, your alternative financial arrangements if you do not have a joint bank account, and/or whether and how you both contribute to expenses, etc.
When assessing the social aspect of the relationship the Department will consider whether you both undertake social activities together, present as partners to friends and family, and/or have been recognised as a couple by third parties. It is important to note that at least two Australians (citizens or permanent residents) who know you both as a couple must provide Statutory Declarations about the genuineness of your relationship.
The nature of your commitment to each other may entail the history of your relationship, how you communicate with each other, how do you each provide emotional and physical support, the current status of your relationship, and/or any future plans you have for your relationship.
We confirm that the above provided examples are not exhaustive of all types evidence which you may attach to your application in support of same; and it is important to remember that each relationship is unique and requires special attention. Accordingly, Sambi Legal advises reaching out to our office for a free Initial Consult if you or a loved one is planning to migrate to Australia for tailored, personalised assistance in navigating the world of Australian immigration law.
