Last updated 30 September 2024

Visa cancellation or refusal on character grounds

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 visa or refuse a visa application where that person does not pass the character test. The decision maker can be either the Minister for Immigration, citizenship or Multicultural Affairs (minister) or an officer in the Department of Home Affairs (Home Affairs).

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.

The character test is set out in s 501(6) of the Migration Act. Broadly, a person does not pass the character test if they:

  • have a substantial criminal record (sentence of imprisonment for 12 months or more, or two or more terms that together total 12 months or more, or, in some circumstances, acquittal due to unsound mind or the person was unfit to plead)
  • 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 reasonably suspected of having been involved in people smuggling, human trafficking or a serious international crime
  • are not of good character having regard to past, criminal and general conduct
  • are subject to the assessment that there is a risk they would engage in criminal conduct in Australia, harass, intimidate or stalk a person, vilify a segment of the population, incite discord or represent a danger to the Australian community or a part of it
  • have been convicted overseas for certain serious crimes, including offences against children and serious international crimes
  • receive an adverse assessment from ASIO or an Interpol notice is in force, which indicates that person would present a risk.

Ministerial Direction No. 110 sets out factors to be taken into account when deciding whether a person meets the character test, within the above parameters. The most weighty primary consideration is protection of the Australian community from criminal or other serious conduct. The other primary considerations are whether the conduct constituted family violence, the strength, nature and duration of ties to Australia, the best interests of minor children in Australia and expectations of the Australian community.

Other considerations, which are afforded less weight, are the legal consequences of the decision, extent of impediments if the person was removed to Australia and the impact on Australian business interests.

People in prison who have been sentenced to 12 months or more or been convicted of a sexual offence involving a child, must have their visa cancelled. They then have 28 days to ask that the decision to cancel to be revoked. If Home Affairs refuses their request then the person has nine days to apply to the ART to review the decision (see the section Review of Character Cancellation and Refusal Decisions).

Visa cancellation under integrity provisions

As mentioned in the introduction to this chapter, the Migration Act allows visa applications to be refused if the person provides incorrect, false or misleading information or if they attach a bogus document to their visa application.

Section 109 of the Migration Act allows Home Affairs to also cancel a person’s visa for a breach of these provisions by:

  • providing incorrect information on a visa application or passenger card
  • provide a bogus document
  • failing to notify Home Affairs if they become aware that they have given an incorrect answer or information.

If Home Affairs is considering doing this, they will send a Notice of Considering Cancellation to the person and invite the person to provide reasons why their visa should not be cancelled. They will then consider any response the person provides within the timeframe before moving to a cancellation decision.