s501 Visa Cancellations & Notices of Intent to Consider Cancellation (NOICC)
Have you received a visa cancellation under section 501 of the Migration Act 1958?
Section 501 of the Migration Act 1958 (‘the Act’) grants the Minister power to refuse and/or cancel a visa if the Minister is satisfied that an individual does not pass the character test.
In determining whether an individual passes the character test, the Minister will have regard to their past and present general and criminal conduct.
The test itself is outlined in Section 501(6) of the Migration Act 1958.
Some examples which constitute failure of the character test include, but are not limited to:
- An individual having a substantial criminal record (which is explored in Section 501(7) of the Act)
- Being convicted of a sexually based offence involving a child (regardless of whether this was discharged)
- Being convicted of a crime whilst in immigration detention. This includes during an escape of immigration detention (which in itself can be grounds for not passing a character test) or anytime thereafter escaping detention.
- If an individual has been in or associated with a criminal group, organisation, or person (or if the Minister reasonably suspects the individual has been)
- If an individual has been involved in conduct, whether in Australia or overseas, constituting trafficking in persons, the crime of genocide, a crime against humanity, a war crime, or a crime involving torture or slavery.
- If an individual has been subject to an adverse or qualified security assessment by ASIO
- There is an Interpol notice in force against the applicant or visa holder
If you have received a cancellation or Notice of Intention to Consider Cancellation from the Department your next steps are very important.
The Department of Home Affairs can directly cancel a visa (mandatory cancellation) without providing you any notice (in limited circumstances) otherwise they must notify you that they are considering cancelling your visa.
Received a Visa Cancellation Notice under Section 501? What Are Your Next Steps?
Once you receive your notice from the Department it is critical that a well-represented and detailed response advocating your position is put forward to the Department which they must consider. It is important that accompanying supporting documentation is also provided.
If your visa has been cancelled directly, you may have the ability to have the cancellation reviewed at the Administrative Appeals Tribunal (AAT) or relevant Courts.
How can we help?
Ethos Migration Lawyers have successfully represented many visa holders (and former visa holders) to avoid a visa cancellation or have their visa cancellation revoked.
Part 5 of the Migration Act set’s out which visa cancellations by the Department can be reviewed/appealed. If you have received a cancellation that you think may be eligible for review, please contact us.
Ethos Migration Lawyers will fully review your matter providing frank advice on prospects of appeal (remember, the tribunal can only work within the law, so it is our role to demonstrate how the Department has misinterpreted the law, or has made an unlawful decision), we will prepare all aspects of the appeal including written submissions to the Department/Tribunal or Court, assist in the preparation and collection of evidence to be used, provide representation and advocate for our clients relentlessly.
If you have any questions about visa cancellations, or would like to speak to one of our immigration lawyers and registered migration agents for more information on Australian visas get in touch with Ethos Migration Lawyers today.
What Are Your Next Steps?
If you’ve receive a visa cancellation notice, strict time limits apply in relation to your opportunity to respond and it is highly recommended you seek professional representation when responding to the Department. All information you provide to the Department, can, and will be used against you if required.
In some cases, the Department can cancel your visa without providing notice if able to do so by law.
If your visa has been cancelled, you may have the opportunity to have the cancellation reviewed at the Administrative Appeals Tribunal (AAT). Again, strict time limits apply so it is best to seek legal representation as soon as possible.
How we can help
We will thoroughly assess the reasons for the intended visa cancellation, or visa cancellation (if it has already been cancelled) and advise on what options you have moving forward. If the cancellation is being considered, we will represent you on your behalf to the Department to put forward a strong submission advocating why your visa should not be cancelled, and if it has already been cancelled, we can assist with your preparation and representation at the tribunal for a review of the cancellation.
Please contact us immediately for further assistance with a visa cancellation.
Visa Cancellations Frequently Asked Questions
Cancellation of your visa may have certain ramifications which will prevent you from applying for further visas in Australia. If you visa has been cancelled, we recommend you book in a consultation to discuss how your visa cancellation will affect your stay in Australia.
Yes, permanent residency visas can be cancelled under certain circumstances.
This depends on the reasons your visa was cancelled. Some visa cancellations come with exclusions periods whilst other cancellations do not.
In most cases, when your visa is cancelled you have seven working days after you are notified of the decision to cancel your visa to have the decision reviewed by the Administrative Appeals Tribunal (AAT).
Once your visa is cancelled it is important you take immediate steps to regularise your status in Australia until you are able to depart. In most cases this would mean applying for a Bridging Visa E on departure grounds.