s501 Visa Cancellation – revocation – s501 Migration Act – non citizen HELLS ANGEL
For more than 20 years I and my team have been helping clients, migration agents and lawyers win difficult cases. Over the years AR LAW SERVICES: Master Migration & Regulatory Lawyers has steadily built up a practice in the area of law where criminal defense and immigration law bleed into each other. We are now regarded as one of Australia’s leading Crimmigration Specialist Law Firms.
Consequently as often happens, I was approached by a RMA with a difficult criminal/character cancellation s501 case! This case had all the twists of a great movie! The applicant had applied for Australian Citizenship and then things started to fall apart… It was at this point that the client retained AR LAW SERVICES: Master Migration & Regulatory Lawyers.
(The agent involved was also a member of VISA – the Victorian Immigration Solicitors’ Alliance – consequently he could access the ABG loyalty discount, saving his client money)
Just the facts Ma’am!
The client was – in his youth, in his own words a bit of a “hell raiser” – “a wild one” – “a rebel”
According to the police reports, the court records and witness statements, he was a convicted criminal – a violent and dangerous member of an outlaw biker gang.
But his last conviction was over 30 years ago.
True he still had some mates who “rode” but his “easy rider days were well and truly in his rear vision mirror.”
He was a family man – a pillar of the community.
I was confident we could win, particularly with the new direction, but I thought it would be at the Tribunal.
However following several submissions to the National Character Consideration Centre (NCCC) Department of Home Affairs, they gave up and the clients visa cancellation was revoked!
So if you or your client has had a visa cancelled or refused pursuant to section 501 or any of the power – talk to us!
Section 501 – Revocation
Character related legislation of the Migration Act and Migration Regulations
Section 501 Refusal or cancellation of visa on character grounds
Decision of Minister or delegate – natural justice applies
501(1) The Minister may refuse to grant a visa to a person if the person does not
satisfy the Minister that the person passes the character test.
(2) The Minister may cancel a visa that has been granted to a person if:
(a) the Minister reasonably suspects that the person does not pass the
character test; and
(b) the person does not satisfy the Minister that the person passes the
character test.
Decision of Minister — natural justice does not apply
(3) The Minister may:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person; if:
(c) the Minister reasonably suspects that the person does not pass the
character test; and
(d) the Minister is satisfied that the refusal or cancellation is in the national
interest.
Decision of Minister or delegate – mandatory cancellation
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character
test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of
paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full-time basis
in a custodial institution, for an offence against a law of the
Commonwealth, a State or a Territory.
(3B) Subsection (3A) does not limit subsections (2) and (3).
(4) The power under subsection (3) may only be exercised by the Minister
personally.
(5) The rules of natural justice, and the code of procedure set out in Subdivision
AB of Division 3 of Part 2, do not apply to a decision under subsection (3)
or (3A).
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Character test
(6) For the purposes of this section, a person does not pass the “character test”
if:
(a) the person has a substantial criminal record (as defined by subsection
(7)); or
(aa) the person has been convicted of an offence that was committed:
(i) while the person was in immigration detention; or
(ii) during an escape by the person from immigration detention; or
(iii) after the person escaped from immigration detention but before
the person was taken into immigration detention again; or
(ab) the person has been convicted of an offence against section 197A;
or
(b) the Minister reasonably suspects:
(i) that the person has been or is a member of a group or
organisation, or has had or has an association with a group,
organisation or person; and
(ii) that the group, organisation or person has been or is involved in
criminal conduct; or
(ba) the Minister reasonably suspects that the person has been or is
involved in conduct constituting one or more of the following:
(i) an offence under one or more of sections 233A to 234A (people
smuggling);
(ii) an offence of trafficking in persons;
(iii) the crime of genocide, a crime against humanity, a war crime, a
crime involving torture or slavery or a crime that is otherwise of
serious international concern;
whether or not the person, or another person, has been convicted of
an offence constituted by the conduct; or
(c) having regard to either or both of the following:
(i) the person’s past and present criminal conduct;
(ii) the person’s past and present general conduct;
the person is not of good character; or
(d) in the event the person were allowed to enter or to remain in Australia,
there is a risk that the person would:
(i) engage in criminal conduct in Australia; or
(ii) harass, molest, intimidate or stalk another person in Australia; or
(iii) vilify a segment of the Australian community; or
(iv) incite discord in the Australian community or in a segment of that
community; or
(v) represent a danger to the Australian community or to a segment
of that community, whether by way of being liable to become
involved in activities that are disruptive to, or in violence
threatening harm to, that community or segment, or in any other
way; or
(e) a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences
involving a child; or
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(ii) found the person guilty of such an offence, or found a charge
against the person proved for such an offence, even if the
person was discharged without a conviction; or
(f) the person has, in Australia or a foreign country, been charged with or
indicted for one or more of the following:
(i) the crime of genocide;
(ii) a crime against humanity;
(iii) a war crime;
(iv) a crime involving torture or slavery;
(vi) a crime that is otherwise of serious international concern; or
(g) the person has been assessed by the Australian Security
Intelligence Organisation to be directly or indirectly a risk to security
(within the meaning of section 4 of the Australian Security
Intelligence Organisation Act 1979); or
(h) an Interpol notice in relation to the person, from which it is reasonable
to infer that the person would present a risk to the Australian
community or a segment of that community, is in force.
Otherwise, the person passes the “character test”.
Substantial criminal record
(7) For the purposes of the character test, a person has a “substantial criminal
record” if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12
months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment,
where the total of those terms is 12 months or more; or
(e) the person has been acquitted of an offence on the grounds of
unsoundness of mind or insanity, and as a result the person has been
detained in a facility or institution; or
(f) the person has:
(i) been found by a court to not be fit to plead, in relation to an
offence; and
(ii) the court has nonetheless found that on the evidence available
the person committed the offence; and
(iii) as a result, the person has been detained in a facility or
institution.
Concurrent sentences
(7A) For the purposes of the character test, if a person has been sentenced to
2 or more terms of imprisonment to be served concurrently (whether in
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whole or in part), the whole of each term is to be counted in working out
the total of the terms.
Example:A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to
be served concurrently. For the purposes of the character test, the total of
those terms is 6 months.
Periodic detention
(8) For the purposes of the character test, if a person has been sentenced to
periodic detention, the person’s term of imprisonment is taken to be equal
to the number of days the person is required under that sentence to spend
in detention.
Residential schemes or programs
(9) For the purposes of the character test, if a person has been convicted of an
offence and the court orders the person to participate in:
(a) a residential drug rehabilitation scheme; or
(b) a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal
to the number of days the person is required to participate in the scheme or
program.
Pardons etc.
(10) For the purposes of the character test, a sentence imposed on a person, or
the conviction of a person for an offence, is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) both:
(i) the person has been pardoned in relation to the conviction
concerned; and
(ii) the effect of that pardon is that the person is taken never to have
been convicted of the offence.
Conduct amounting to harassment or molestation
(11) For the purposes of the character test, conduct may amount to harassment
or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) it consists only of damage, or threatened damage, to property
belonging to, in the possession of, or used by, the person.
Definitions
(12) In this section:
“court” includes a court martial or similar military tribunal.
“imprisonment” includes any form of punitive detention in a facility or
institution.
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“sentence” includes any form of determination of the punishment for an
offence.
Section 501A Refusal or cancellation of visa – setting aside and
substitution of non-adverse decision under subsection 501(1) or (2)
501A(1) This section applies if:
(a) a delegate of the Minister; or
(b) the Administrative Appeals Tribunal;
makes a decision (the original decision):
(c) not to exercise the power conferred by subsection 501(1) to refuse
to grant a visa to the person; or
(d) not to exercise the power conferred by subsection 501(2) to cancel
a visa that has been granted to a person;
whether or not the person satisfies the delegate or Tribunal that the
person passes the character test and whether or not the delegate or
Tribunal reasonably suspects that the person does not pass the character
test.
Action by Minister — natural justice applies
501A(2) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the
character test (as defined by section 501); and
(d) the person does not satisfy the Minister that the person passes the
character test; and
(e) the Minister is satisfied that the refusal or cancellation is in the national
interest.
Action by Minister — natural justice does not apply
501A (3) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the
character test (as defined by section 501); and
(d) the Minister is satisfied that the refusal or cancellation is in the
national interest.
501A(4) The rules of natural justice, and the code of procedure set out in
Subdivision AB of Division 3 of Part 2, do not apply to a decision under
subsection (3).
501A(4A) Under subsection (2) or (3), the Minister may cancel a visa that has been
granted to a person even if the original decision under subsection (1) was
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a decision not to exercise the power conferred by subsection 501(1) to
refuse to grant a visa to the person.
Minister’s exercise of power
501A(5) The power under subsection (2) or (3) may only be exercised by the
Minister personally.
501A(6) The Minister does not have a duty to consider whether to exercise the
power under subsection (2) or (3) in respect of the original decision,
whether or not the Minister is requested to do so, or in any other
circumstances.
Decision not reviewable under Part 5 or 7
501A(7) A decision under subsection (2) or (3) is not reviewable under Part 5 or 7.
Note 1: For notification of decisions under subsection (2), see section 501G.
Note 2: For notification of decisions under subsection (3), see section 501C.
Section 501C. Refusal or cancellation of visa – revocation of decision under
subsection 501(3) or 501A(3)
501C (1) This section applies if the Minister makes a decision (the original
decision) under subsection 501(3) or 501A(3) to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information
(other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the
original decision; and
(b) is specifically about the person or another person and is not
just about a class of persons of which the person or other person is
a member.
(3) As soon as practicable after making the original decision, the
Minister must:
(a) give the person, in the way that the Minister considers
appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) except in a case where the person is not entitled to make
representations about revocation of the original decision (see
subsection (10)) — invite the person to make representations to the
Minister, within the period and in the manner ascertained in
accordance with the regulations, about revocation of the original
decision.
(4) The Minister may revoke the original decision if:
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(a) the person makes representations in accordance with the
invitation; and
(b) the person satisfies the Minister that the person passes the
character test (as defined by section 501).
(5) The power under subsection (4) may only be exercised by the Minister
personally.
(6) If the Minister revokes the original decision, the original decision is taken
not to have been made. This subsection has effect subject to subsection
(7).
(7) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the
Commonwealth, an officer or any other person because of the detention.
(8) If the Minister makes a decision (the subsequent decision) to revoke, or
not to revoke, the original decision, the Minister must cause notice of the
making of the subsequent decision to be laid before each House of the
Parliament within 15 sitting days of that House after the day on which the
subsequent decision was made.
(9) If the person does not make representations in accordance with the
invitation, the Minister must cause notice of that fact to be laid before each
House of the Parliament within 15 sitting days of that House after the last
day on which the representations could have been made.
(10) The regulations may provide that, for the purposes of this section:
(a) a person; or
(b) a person included in a specified class of persons;
is not entitled to make representations about revocation of an original
decision unless the person is a detainee.
(11) A decision not to exercise the power conferred by subsection (4) is not
reviewable under Part 5 or 7.
Section 501CA. Cancellation of visa—revocation of decision under
subsection 501(3A) (person serving sentence of imprisonment)
501CA(1) This section applies if the Minister makes a decision (the original
decision) under subsection 501(3A) (person serving sentence of
imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information
(other than non-disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original
decision; and
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(b) is specifically about the person or another person and is not just
about a class of persons of which the person or other person is a
member.
(3) As soon as practicable after making the original decision, the Minister
must:
(a) give the person, in the way that the Minister considers appropriate in
the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the
period and in the manner ascertained in accordance with the
regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation;
and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by
section 501); or
(ii) that there is another reason why the original decision should be
revoked.
(5) If the Minister revokes the original decision, the original decision is taken
not to have been made.
(6) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the
Commonwealth, an officer or any other person because of the detention.
(7) A decision not to exercise the power conferred by subsection (4) is
not reviewable under Part 5 or 7.
Note: For notification of decisions under subsection (4) to not revoke,
see section 501G.
Section 501E. Refusal or cancellation of visa – prohibition on applying for other
visas
501E (1) A person is not allowed to make an application for a visa, or have an
application for a visa made on the person’s behalf, at a particular time
(the application time) that occurs during a period throughout which the
person is in the migration zone if:
(a) at an earlier time during that period, the Minister made a decision
under section 501, 501A or 501B to refuse to grant a visa to the
person or to cancel a visa that has been granted to the person; and
(b) the decision was neither set aside nor revoked before the
application time.
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(1A) In relation to the Minister’s decision to refuse to grant a visa to the person,
as mentioned in paragraph (1)(a), it does not matter whether:
(a) the application for the visa was made on the person’s behalf; or
(b) the person knew about, or understood the nature of, the application
for the visa due to:
(i) any mental impairment; or
(ii)the fact that the person was, at the time the application was made,
a minor.
(2) Subsection (1) does not prevent a person, at the application time, from
making an application for:
(a) a protection visa; or
(b) a visa specified in the regulations for the purposes of this
subsection.
Note: The person may however be prevented from applying for a protection visa
because of section 48A.
(3) Subsection (1) does not prevent a person, at the application time, from
making an application for a visa if, before the application time, the Minister
had, acting personally, granted a permanent visa to the person.
(4) Subsection (1) does not prevent a person, at the application time, from
making an application for a visa if:
(a) before the application time, the person was granted a visa of a kind
referred to in subsection (2) or (3); and
(b) the person would, but for the operation of subsection (2) or (3), have
been prevented from applying for that visa.
Section 501F. Refusal or cancellation of visa – refusal of other visa
applications and cancellation of other visas
501F (1) This section applies if the Minister makes a decision under section 501,
501A, 501B or 501BA to refuse to grant a visa to a person or to cancel a
visa that has been granted to a person.
(2) If:
(a) the person has made another visa application that has neither been
granted nor refused; and
(b) the visa applied for is neither a protection visa nor a visa specified in
the regulations for the purposes of this subsection;
the Minister is taken to have decided to refuse that other application.
(3) If:
(a) the person holds another visa; and
(b) that other visa is neither a protection visa nor a visa specified in the
regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.
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(4) If the decision referred to in subsection (1) is set aside or revoked, the
decision that the Minister is taken to have made under subsection (2) or
(3) is also set aside or revoked, as the case may be.
(5) A decision that the Minister is taken to have made under subsection (2) or
(3) is not reviewable under Part 5 or 7.
Section 501D. Refusal or cancellation of visa – method of satisfying Minister
that person passes the character test
501D The regulations may provide that, in determining for the purposes of section
501, 501A or 501B, whether:
(a) a person; or
(b) a person included in a specified class of persons;
satisfies the Minister that the person passes the character test (as defined by
section 501), any information or material submitted by or on behalf of the
person must not be considered by the Minister unless the information or
material is submitted within the period, and in the manner, ascertained in
accordance with the regulations.
Regulation 2.52(2) Submission of information or material – revocation
2.52(2) The representations must be made:
(a) for a representation under paragraph 501C(3)(b) of the Act – within 7 days
after the person is given the notice under subparagraph 501C(3)(a)(i) of the
Act; and
(b) for a representation under paragraph 501CA(3)(b) of the Act – within 28
days after the person is given the notice and the particulars of relevant
information under paragraph 501CA(3)(a) of the Act.
Regulation 2.53 Submission of information or material (Act, s501D)
2.53(1) For section 501D of the Act, information or material must be:
(a) in writing; and
(b) received by the Minister or Immigration within 28 days after the
person is invited by the Minister or Immigration to submit information
or material.
(2) A document containing the information or material must be:
(a) the original document; or
(b) a copy of the original document that is certified in writing to be a true
copy by:
(i) a Justice of the Peace; or
(ii) a Commissioner for Declarations; or
(iii) a person before whom a statutory declaration may be made
under the Statutory Declarations Act 1959; or
(iv) if the copy is certified in a place outside Australia:
(A) a person who is the equivalent of a Justice of the Peace or
a Commissioner for Declarations in that place; or
(B) a Notary Public.
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(3) The document must contain, or be accompanied by, the following written
information:
(a) the full name of the person who is the subject of the decision to
which the information or material contained in the document relates;
(b) the date of birth of that person;
(c) one of the following:
(i) the applicant’s client number;
(ii) the Immigration file number;
(iii) the number of the receipt issued by Immigration when the visa
application was made;
(d) if the visa application was made outside Australia — the name of
the Australian mission or Immigration office at which the visa
application was given to the Minister.
(4) If the document is submitted in a language other than English, it must be
accompanied by an accurate English translation
