Visa cancellation under sections 116 and 501

Visa cancellation under sections 116 and 501 of the Australian Migration Act 1958 pertains to the cancellation of a person’s visa due to certain grounds, typically associated with character and criminality concerns.

Section 116

Under section 116 of the Migration Act 1958, a person’s visa can be cancelled if the Minister for Home Affairs reasonably suspects that the person does not pass the character test. The character test assesses an individual’s criminal history, association with criminal organisations, or their potential risk to the Australian community.

Reasonable Suspicion

The Minister must have reasonable grounds to suspect that the person does not meet the character requirements. This suspicion may arise from a range of factors, including criminal convictions, previous visa cancellations, or intelligence reports.

Notice and Review

If the Minister intends to cancel a person’s visa under section 116, they must provide written notice outlining the reasons for the cancellation and the person’s rights to seek a review of the decision at the Administrative Appeals Tribunal (AAT).

Character Test

The AAT will review the case and consider factors such as the nature and seriousness of any criminal convictions, the person’s conduct, and the risk they may pose to the Australian community. The AAT has the authority to affirm, set aside, or substitute the Minister’s decision.

Consequences

If the visa is cancelled under section 116, the person becomes unlawful in Australia, and they may be detained and removed from the country. In some cases, they may also face a re-entry ban, prohibiting them from returning to Australia for a specified period.

Section 501

Under section 501 of the Migration Act 1958, a person’s visa can be cancelled if they do not pass the character test due to their criminal record or association with certain activities or organisations.

Character Test

The character test under section 501 is more extensive and includes factors such as criminal convictions, association with known criminals or organisations involved in criminal conduct, or substantial criminal records.

Mandatory Cancellation

For certain serious offences, such as those involving violence, sexual offences against a child, or trafficking of drugs, visa cancellation under section 501 is mandatory. In such cases, the Minister is generally required to cancel the person’s visa.

Notice and Review

Similar to section 116, if the Minister intends to cancel a person’s visa under section 501, they must provide written notice outlining the reasons for the cancellation and the person’s rights to seek a review of the decision at the AAT.

AAT Review

The AAT reviews cases under section 501 and considers factors such as the person’s criminal record, the nature and seriousness of the offences, their personal circumstances, and any potential risk to the Australian community. The AAT has the power to affirm, set aside, or substitute the Minister’s decision.

Consequences

Visa cancellation under section 501 can result in the person becoming unlawful, detention, removal from Australia, and a re-entry ban. The length of the re-entry ban can vary depending on the individual circumstances.

It is important to note that visa cancellation under sections 116 and 501 involves complex legal processes and potential severe consequences. If you or someone you know is facing visa cancellation under these sections, seeking immediate legal advice from an immigration lawyer or a registered migration agent is crucial to understand your options, rights, and possible avenues for appeal or review.