*Last updated on: 25 Nov 2024
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Section 501 Visa Cancellation & NOICC

An opportunity for applicants to challenge the decisions of the department

Understanding Section 501

Section 501 of the Migration Act 1958 allows the Australian Minister for Immigration to cancel or refuse a visa if a person does not pass the ‘character test’. This section serves as a key measure for safeguarding the Australian community from individuals who may pose a threat due to criminal convictions, associations with criminal entities, or other adverse character considerations. A decision under Section 501 can be triggered for both temporary and permanent visa holders and applies to individuals either onshore or offshore.

What is the ‘Character Test’?

A person may fail the character test under Section 501(6) of the Migration Act for reasons such as:

(1) Substantial Criminal Record:
Defined as having been sentenced to a prison term of 12 months or more (including cumulative sentences).

(2) Associations with Criminal Groups:
If a person has or had an association with individuals or groups involved in criminal conduct.

(3) Conduct or Behaviour:
Past and present conduct that poses a risk to the Australian community.

(4) Adverse Security Assessments:
Security concerns raised by the Australian Security Intelligence Organisation (ASIO).

(5) Involvement in International Crimes:
This includes crimes against humanity, war crimes, and other serious international offences.

(6) Active Interpol Notices:
An individual may fail the character test if they are subject to an Interpol notice related to criminal activities.

Key Types of Section 501 Visa Cancellations

1. Section 501(1) Visa Refusal or Cancellation
The Minister or their delegate can refuse to grant or cancel a visa if the applicant does not satisfy the character test. This may include:
(a) Substantial Criminal Record: Having been sentenced to imprisonment for a period of 12 months or more (cumulative sentences included).
(b) Past and Present Criminal Conduct: Previous conduct, including criminal offences or conduct that indicates a risk to the Australian community.
(c) Associations with Criminal Organisations: Links to individuals or groups involved in criminal activities.
(d) Security Concerns: Adverse security assessments by the Australian Security Intelligence Organisation (ASIO).

2. Section 501(2) Visa Cancellation
This provision allows the Minister to cancel a visa if they reasonably suspect that the visa holder does not meet the character test. Visa holders are typically given the opportunity to provide submissions and evidence to satisfy the Minister of their character before a final decision is made.

3. Section 501(3) Visa Cancellation
The Minister can exercise this power to cancel a visa without giving prior notice or an opportunity for the visa holder to respond if they are satisfied that:
(a) The individual does not pass the character test.
(b) It is in the national interest to proceed with the cancellation. Although no prior input is sought, the affected person can seek a revocation of the decision within 7 days.

4. Section 501(3A) Mandatory Visa Cancellation
Under this provision, the Minister must cancel a visa if the individual:
(a) Has been sentenced to a prison term of 12 months or more, or
(b) Has been convicted of a sexually-based offence involving a child and is currently serving a full-time custodial sentence. Unlike discretionary cancellations, no prior notice is given, but affected individuals may request a revocation of the decision within 28 days.

5. Section 501A and Section 501B Cancellation
These sections empower the Minister to override decisions made by a delegate or the Administrative Review Tribunal (ART) under Sections 501(1) or 501(2) if it is deemed necessary in the national interest.

Section 501A allows the Minister to set aside a decision not to cancel a visa.
Section 501B enables the Minister to replace a cancellation decision made by a delegate with their own decision.

Responding to a Section 501 Notice of Intention to Consider Cancellation (NOICC)

Receive NOICC Notice

You recently received a notification from the Department indicating potential visa cancellation.

Prepare a Response & Legal Representation

We represent you and gather evidence such as character references, rehabilitation efforts, community contributions, and medical reports.

Decision by the Minister/Delegate

We receive outcome - the Minister may decide to proceed with cancellation or to maintain the visa.

Supporting Documentation for Preventing Visa Cancellation

Upon receiving a NOICC under Section 501, individuals have the opportunity to present a comprehensive response, including:

Personal Statements: Explaining their conduct and rehabilitation.
Character References: From family, employers, and community leaders.
Rehabilitation Evidence: Proof of completed programs (e.g., anger management).
Medical Evidence: Conditions that may worsen due to deportation.
Family Impact Statements: Describing the impact on dependents.
Community Contributions: Employment, volunteer work, etc .

Factors Considered in a Section 501 Decision

When assessing whether to cancel or refuse a visa under Section 501, the Minister will consider:

Seriousness of Past Conduct: Including the nature and duration of criminal offences.
Risk to the Australian Community: The likelihood of re-offending or posing a danger.
Impact on Dependents: Especially in cases involving children.
International Obligations: Including Australia’s non-refoulement obligations (preventing return to countries where harm may occur).
Family and Community Ties: Positive contributions and connections in Australia.
Health Considerations: For both the individual and their dependents.

Possible Outcomes and Next Steps

1. Visa Cancellation Decision

If the Minister decides to cancel your visa, you may face:
- Detention and removal from Australia.
- Bans on future visa applications.

2. Merits Review with the ART

- Eligibility: Available for some Section 501 cancellations, but exclusions apply.
- Process: Submit evidence and present arguments to contest the decision.

3. Judicial Review

- Eligibility: If the AAT affirms the cancellation, you may seek judicial review in the Federal Circuit Court.
- Focus: Reviews legal errors, not the merits of the case.

4. Revocation Requests (Section 501CA)

Opportunity to Reconsider: Request reconsideration of the cancellation decision with new evidence or grounds.

More About the Administrative Review Tribunal

The Administrative Review Tribunal (ART) is an independent body that reviews decisions made by the Department of Home Affairs (DOHA) related to visas, citizenship, and other matters. A merits review with the ART gives you an opportunity to have your case reassessed by experts in migration and administrative law. The review process is fair and impartial, allowing you to present new evidence and challenge decisions made by DOHA.

Know More About the ART

Your Questions Answered

What is Section 501 of the Migration Act?

Section 501 empowers the Minister for Immigration to cancel or refuse visas if an individual does not meet the character test. This applies to both temporary and permanent visa holders and is often invoked for individuals with criminal records, security risks, or associations with criminal organisations.

Can Section 501 apply to any type of visa?

Yes, Section 501 can be used to cancel or refuse any visa type, including both temporary and permanent visas, as long as the character grounds are met.

What is a Notice of Intention to Consider Cancellation (NOICC)?

A NOICC is a formal notification that the Department of Home Affairs is considering canceling your visa under Section 501. It provides an opportunity for you to present evidence and arguments as to why your visa should not be canceled.

Can I appeal a Section 501 visa cancellation?

Yes, most cancellations can be appealed to the ART. However, you must act within strict timeframes, and appeals are not available if the Minister makes a personal decision.

What is the role of the Minister in Section 501 cancellations?

The Minister can personally make decisions under Section 501(3) and 501A/B, overriding AAT or delegate decisions. Ministerial decisions are often based on national interest grounds and are not subject to merits review.

Does a criminal conviction automatically lead to a Section 501 cancellation?

Not necessarily. While a substantial criminal record is a key factor, each case is assessed individually, considering factors like risk to the community, rehabilitation, and character evidence.

Can compassionate and family circumstances affect a Section 501 decision?

Yes, factors like the impact on children, family ties, and compassionate grounds (e.g., health conditions) can be considered during the decision-making process.

What are the timeframes for responding to a NOICC?

Timeframes typically range from 5 to 28 days but may be shorter in cases of immigration detention. It is crucial to respond within the stipulated period to avoid a decision being made without your input.

Can I stay in Australia while contesting a Section 501 decision?

Generally, you can remain in Australia until a final decision is made on your appeal, unless specific circumstances require immediate removal.

What happens if the Minister decides to cancel my visa without notice under Section 501(3)?

In this case, you will not have the chance to respond before the decision. However, you can request a revocation of the decision within 7 days, explaining why it should be overturned.

How does the ‘substantial criminal record’ definition impact my case?

A substantial criminal record is defined as a sentence of 12 months or more of imprisonment, including cumulative sentences. This can lead to an automatic failure of the character test.

Are permanent residents affected by Section 501?

Yes, permanent residents who do not meet the character test can have their visas canceled under Section 501, resulting in potential detention and removal.

Can I switch to another visa to avoid Section 501 cancellation?

No, changing your visa type does not eliminate the possibility of cancellation if character concerns remain.

What is the significance of Section 501CA?

Section 501CA provides a process to revoke mandatory cancellations under Section 501(3A), giving affected individuals a chance to present evidence and reasons for why their visa should not be canceled.