Last updated 20 May 2020
The power to cancel a visa on character grounds is found in s 501 of the Migration Act 1994 (Cth) (Migration Act). Section 501 gives a decision maker the power to cancel a person’s Australian visa (or to refuse to grant a visa) where that person does not pass the character test. The decision maker can be either the minister or a Department of Home Affairs officer.
Under s 501A of the Migration Act, the minister has the power to set aside a decision of a delegate or a tribunal not to refuse or cancel a visa. If the minister exercises the power, then the visa holder will be given prior notice. However, if the minister is satisfied it is in the public interest to set aside the decision without notice, then the rules of natural justice and the code of procedure set out in pt 2 div 3 sub-div AB of the Migration Act do not apply.
A person does not pass the character test if they:
- have a substantial criminal record
- have escaped immigration detention or committed an offence while in immigration detention
- have an association with an individual, group or organisation that is suspected of being involved in criminal conduct
- are not of good character having regard to past, criminal and general conduct
- are at significant risk of engaging in future unacceptable conduct (s 501(6) Migration Act).
In deciding whether to cancel a non-citizen’s visa, the primary considerations are protection of the Australian community from criminal or other serious conduct, best interests of minor children in Australia and expectations of the Australian community. The Department of Home Affairs (DHA) also considers the:
- international non-refoulement obligations
- strength, nature and duration of ties
- impact on Australian business interests
- impact on victims
- extent of impediments if removed (s 499 Migration Act, Ministerial Direction No. 79).
People in prison who have been sentenced to 12 months or more at any time, or been convicted of a sexual offence involving a child, must have their visa cancelled. They then have 28 days to request the decision to cancel to be revoked. If the DHA refuses the request then the person has nine days to apply to the Administrative Appeals Tribunal to review the decision.