Visa cancellation under s 501(2)

If you fail the character test, your visa is liable to cancellation under section 501(2) of the Migration Act. This provision is not used as often as it used to be due to the advent of mandatory cancellation under section 501(3A) of the Migration Act. However, we have noticed that the Department of Immigration have been reviewing the cases of long term permanent residents with criminal histories with a view to cancelling their visas under this section. If you receive a notice of intention to consider cancellation under section 501(2) of the Migration Act 1958, get in contact with us quickly. You will only have 28 days to respond to the notice and it is crucial that you put your best foot forward from the get go if you are serious about staying in Australia and want to avoid a long stay in an Immigration Detention Centre.

There are a number of ways in which a person can fail the character test. Some are not capable of challenge, such as if a person has been sentenced to a term of imprisonment for 12 months or longer (sections 501(6)(a) and 501(7)(c)). Others are capable of challenge, such as if the person were allowed to remain in Australia there is a risk that the person would engage in criminal conduct or harass, molest. intimidate or stalk another person (section 501(6)(d)).

The Department often alleges that a person fails the character test under section 501(6)(d) in cases of domestic violence. In such cases it is very important to get advice, making representations in this area is dangerous if you do not have the benefit of objectivity and experience. Often times a person will throw away an arguable or a winning case by making rash and improper representations on his own behalf.

Once it is established that a person fails the character test, the Minister or his delegate can exercise their discretion to cancel the visa. A number of considerations will be taken into account in the exercise of the discretion, including the protection of the Australian community, the best interests of minor children in Australia, the expectations of the Australian community, the strength, nature and duration of ties to Australia and the extent of impediments if removed. Except in the case of refugees, the main considerations in favour of an applicant remaining in Australia will be the interests of his or her children and his or her family. It is important to emphasise these considerations in any representations made to the Department.

If you have received a notice of intention to consider cancellation under section 501(2) of the Migration Act 1958, get in touch with us for an obligation free phone call.