Section 501 Visa Cancellation & NOICC
About Section 501
Section 501 of the Migration Act 1958 empowers the Minister to cancel or refuse a visa based on character grounds. This involves assessing an individual’s character, taking into account factors such as having a substantial criminal record, convictions for sexual offenses involving minors, involvement in crimes while in immigration detention, associations with criminal groups, engagement in serious international crimes like human trafficking or war crimes, adverse security assessments by ASIO, and active Interpol notices. Additionally, Section 501(3A) mandates visa cancellation for those with substantial criminal records serving prison sentences. The Minister retains discretion under Section 501CA to either revoke or uphold these decisions. This overview covers the key aspects of Section 501 related to character-based visa cancellations.
Section 501(1) Visa Cancellation
Section 501(2) Visa Cancellation
Section 501(3) Visa Cancellation
Section 501(3A) Visa Cancellation
Section 501(6): Character Test Criteria
Section 501(6) of the Australian Migration Act 1958 outlines the criteria for failing the character test, a key element in visa cancellation decisions. Under this section, a person fails the character test if they have a substantial criminal record, defined as a prison sentence of 12 months or more, or a conviction for specific serious offenses. Additionally, associations with individuals or groups involved in criminal activity, past conduct indicating a risk to the Australian community, or adverse security assessments can also lead to failure of the character test. This section is crucial in determining the suitability of non-citizens to enter or remain in Australia based on character grounds.
Section 501(7): Substantial Criminal Record
Section 501 A and B Visa Cancellation
Section 501 A
A delegate of the Minister or the Tribunal decides not to refuse or cancel your visa under s.501(1) or (2).
Section 501 B
A delegate of the Minister decides to cancel or refuse your visa under s.501(1) or (2).
Outcomes
In both Scenario A and Scenario B, it’s important to note that the Minister has the authority to overrule that decision if he or she is satisfied that refusal or cancellation is in the national interest.
Additional Notes
- If the Minister personally decides that refusal or cancellation is in the national interest, your request for revocation (meaning reconsideration) can be made within 7 days of receiving notice of cancellation.
- However, you will not have access to merits review in this case. The decision can only be overturned by a court if there was jurisdictional error or potentially if a Minister makes a different decision.
Section 501 J Cancellation
Section 501J provides the Minister with discretionary powers. If the Minister considers that it is in the public interest to do so, the Minister may set aside the Tribunal’s decision and substitute a more favorable decision.
Additional Notes
- This discretionary power allows the Minister to make a decision that may be more favorable to you if it serves the public interest.
- If you face Section 501 visa challenges, it’s essential to understand the potential outcomes and implications of the Minister’s discretion. Seeking legal advice or representation may be beneficial in such cases.
Section 501CA
Revocation of Cancellation Request
Section 501CA of the Australian Migration Act 1958 deals with revoking visa cancellations for individuals serving prison sentences. You can request the Minister to revoke a cancellation.
- If your visa gets canceled while you’re in prison, you can ask the Minister to reverse the decision.
- Consult an Registered Migration Agent first.
- The Minister must consider if you meet the character test or if there’s another valid reason for revocation.
- You’ll receive a notice with details and a chance to make representations.
- If the Minister agrees, the original cancellation is undone.
- Detention during this process is lawful and can’t be challenged.
- The Minister’s decision not to revoke isn’t reviewable.
Section 503 A
Protecting Confidential Information
Section 503A addresses situations where information about your client, which could potentially lead to visa refusal or cancellation, has been provided by law enforcement agencies or is considered confidential.
Implications
In such cases, your client may not have access to the relevant information that has been supplied by these agencies or is classified as confidential. This limitation can pose challenges when navigating the visa application or cancellation process.
Timeframe for Response
Standard Period:
- Typically, the applicant is given 5-28 days to respond to the NOICC.
Variations Based on Circumstances:
- In certain situations, like immigration detention, the period might be shorter, e.g., 3 working days.
- Failure to respond within the stipulated timeframe allows the Delegate to decide on the application without further input, often leading to visa refusal.
Visa Options in Immigration Detention Centre
If detained in immigration detention centre, you can apply for a Bridging Visa E, potentially leading to release. However, a criminal record may lead to visa refusal. In case of refusal, you can appeal to the Administrative Appeals Tribunal (AAT) within 2 days. A waiting period of 30 days applies for reapplying, unless the Minister approves.
Visa cancellation may result in a 3-year ban on reapplication. Visa refusal or cancellation in Australia may limit future applications (see section 48 bar and application restrictions here).
What Are Your Next Steps
Upon receiving the notice from the Department, it is crucial to submit a well-prepared and comprehensive response that presents your case effectively. Providing accompanying supporting documents is equally essential.
If your visa has been directly canceled, you may have the option to seek a review of the cancellation through the Administrative Appeals Tribunal (AAT) or the relevant courts.