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.
What Is A Section 501 Visa Cancellation?
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.
‘CAN I STAY IN AUSTRALIA IF MY VISA WAS CANCELLED?’
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.
What Is 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’:
- Protection of the Australian Community
- The Nature & Seriousness Of The Conduct
- The Risk To The Australian Community Should The Non-Citizen Commit Further Offences Or Engage In Other Serious Conduct
- Family Violence Committed By The Non-Citizen
- The Strength, Nature, & Duration Of Ties To Australia
- Best Interests Of Minor Children In Australia Affected By The Decision
- Expectations Of The Australian Community
- Other Considerations
What To Do After Your Visa Cancellation
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.
What Is A ‘Merits Review’?
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.
