The Section 501 Character Test: Mandatory Visa Cancellation and Judicial Review

Mandatory visa cancellation under Section 501 of the Migration Act 1958 is one of the most serious consequences a non-citizen can face when they have a substantial criminal record. Section 501 allows the Australian Government to refuse or cancel visas on character grounds, affecting both visa holders and applicants. These powers affect people who are already vulnerable, often while they are in custody, and the legal steps that follow can be complex and time-sensitive. For individuals and families navigating this process, and for the Australian community, understanding the character test and the available review pathways is critical. This article explains the key features of Section 501, including visa cancellation on character grounds, the substantial criminal record threshold, the implications for visa holders and the broader Australian community, and the avenues for challenging a decision.

The Mandatory Power Under Section 501(3A)

Section 501(3A) requires the Minister or a delegate to cancel a visa if a non-citizen fails the character test because they have a substantial criminal record and are serving a custodial sentence (that is, they are detained in a custodial institution as defined under the law). There is no discretion at this stage, if the statutory criteria are met, mandatory cancellation must occur for a range of offences, including those involving criminal conduct. Sentences that are served concurrently are counted towards the total period of imprisonment for the character test, meaning the total period is the sum of each individual sentence even if served at the same time. The cancellation is triggered by such an offence as defined in the Migration Act, including serious offences and criminal conduct. Once a visa is mandatorily cancelled, the person is subject to removal from Australia and will usually be transferred to immigration detention at the end of their prison sentence, unless they are already in immigration custody. Mandatory cancellation disrupts family life, employment and stability, creating immediate and serious legal consequences for the affected person.

Defining a ‘Substantial Criminal Record’

A person is taken to have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more, whether as a single sentence or as an aggregate across multiple sentences, including being convicted of serious offences such as war crimes, crimes involving torture, or people smuggling. This includes concurrent sentences, periodic detention and suspended sentences, all of which are counted for the purpose of the character test. Offences of serious international concern include sexually based offences involving children, war crimes, crimes involving torture, genocide, and people smuggling. A substantial criminal record also encompasses sentences of life imprisonment or the death penalty. Meeting this threshold automatically triggers the mandatory cancellation framework under Section 501, and a person's relation to criminal organizations or involvement in such offences can also trigger the character test.

The Notice of Intention to Consider Cancellation (NOICC)

Unlike discretionary cancellations, a mandatory cancellation under s501(3A) does not require the Department to issue a Notice of Intention to Consider Cancellation (NOICC) before making the decision. Instead, the affected visa holder receives a notification after their visa has already been cancelled (visa cancelled). At this point, the law provides an important safeguard: the right to request revocation of the original decision, specifically the cancellation decision, under s501CA. The request must be lodged within 28 days of receiving the cancellation notice, and strict time limits apply. Failure to act within this period may forfeit the right to review. This is the key opportunity to present evidence of compelling circumstances, risk factors, and reasons why the visa should be reinstated. The right to request revocation applies after a refusal or cancellation.

[aus_wide_service] [/aus_wide_service]

Challenging the Decision: Merits Review vs. Judicial Review

After a mandatory cancellation, the first reviewable decision is the refusal to revoke. Decision makers must follow specific procedures when they refuse or cancel a visa on character grounds. If a delegate refuses to reinstate the visa, the affected person can seek merits review in the Administrative Review Tribunal (ART). The ART reconsiders the facts, circumstances and merits of the case.

However, if the refusal to revoke is made by the minister personally, it is referred to as the minister's decision and no merits review is available. In those circumstances, the only option is judicial review in the Federal Courts. Judicial review is fundamentally different—it is not about re-deciding the case but about determining whether the decision maker failed to consider relevant legal requirements or acted unlawfully. Visa refusal and cancellation decisions, including those made on character grounds, can be challenged through judicial review.

[free_consultation]

Book a Consultation‍

If you are interested in getting more information about a visa, get in touch with Australian Migration Lawyers for a consultation.

[/free_consultation]

The Scope of Judicial Review

Judicial review focuses solely on the lawfulness of the decision, not on whether the Tribunal or Minister made the “right” or “fair” decision. A court may intervene only if a jurisdictional error has occurred.

Common examples of jurisdictional error include:

• Failing to consider a mandatory relevant factor, such as Ministerial Direction No. 90 or No. 110, to which the decision is subject.
• A breach of procedural fairness, such as failing to give the affected person a reasonable opportunity to address adverse information. Decisions are also subject to the principles of natural justice, which require fair procedures to be followed in the visa cancellation or refusal process.

If no jurisdictional error is identified, the court cannot overturn the cancellation decision simply because it seems harsh or unreasonable; the court's role is limited to determining whether the cancellation decision was lawful and subject to review.

Outcomes of a Successful Judicial Review

If the Federal Court finds a jurisdictional error, it may set aside (quash) the original decision regarding the person's visa and remit the matter back to the Department or the ART for reconsideration of the person's visa status according to law. Importantly, the court cannot grant a visa or make a new decision on the merits. Instead, a successful judicial review restores the applicant’s opportunity to have their case properly determined, allowing the decision-maker to reassess the matter with the identified legal errors corrected.

How Australian Migration Lawyers Can Help

Australian Migration Lawyers assist clients at every stage of the Section 501 process, including assessing the prospects of a judicial review application, preparing detailed submissions on jurisdictional error, and managing the strict filing deadlines that apply in the Federal Court. The judicial review process is technically complex, involving statutory interpretation, administrative law principles and precise procedural requirements. Our team provides clear legal advice, strategic guidance and rigorous representation to safeguard your rights. A registered migration agent can also assist with the visa application process and provide advice to visa applicants on meeting character requirements and supporting documentation.

If you are facing a Section 501 visa cancellation or considering judicial review, contact our team today for tailored advice and urgent assistance. The Department of Home Affairs is responsible for managing visa cancellations and may issue an adverse security assessment that can impact your eligibility.

Frequently Asked Questions (FAQ)

What triggers mandatory visa cancellation under Section 501(3A)?

A visa must be cancelled if the person has a substantial criminal record (typically 12 months imprisonment or more) and is serving a custodial sentence. Mandatory cancellation can also be triggered by a range of offences, including criminal conduct as defined in the Migration Act, such as serious criminal offences, convictions, or involvement in activities that breach Australian or international laws.

Can I challenge a mandatory visa cancellation?

Yes. Your first step is to request revocation within 28 days. If that is refused, you may seek merits review (if the decision was made by a delegate) or judicial review (if the Minister made the decision personally). It is important to note that strict time limits apply for challenging the original decision or a cancellation decision, so you must act promptly after receiving notification.

What is the difference between merits review and judicial review?

Merits review reassesses the facts and circumstances of your case, with decision makers guided by relevant laws and Ministerial Direction 110. Judicial review looks only at whether the decision was lawful and free from jurisdictional error. If the decision maker failed to consider relevant legal requirements, the decision is subject to judicial review and may be returned for reconsideration.

What happens if judicial review is successful?

The Federal Court will set aside the unlawful decision regarding the person's visa and remit it back to the Tribunal or Department. This means that if your visa was cancelled, the visa cancelled status will be reconsidered, giving you another chance to have the matter determined.

Do I get my visa back if I win judicial review?

Not automatically. The Court cannot grant a visa – it only ensures the decision to refuse or cancel a visa is reconsidered lawfully. After judicial review, a visa refusal or cancellation may still occur if the immigration authority or Minister decides to refuse the visa again, as the Court does not itself approve or issue visas.