How Does Mandatory Character Cancellation Work?

Once a visa is granted, there is still unfortunately the risk that it is cancelled. This is regardless of whether the visa is a permanent or temporary one.

There are several methods by which a visa can cancelled. This article will consider how a visa is cancelled mandatorily by s.501(3A) of the Migration Act 1958.

How s.501(3A) Cancellation Occurs

Mandatory cancellation occurs if:

• The visa holder has a ‘substantial criminal record’ on the basis that they have been sentenced to death, imprisonment for life or a term of imprisonment of 12+ months; or

• The visa holder has been convicted, found guilty etc. of a sexually-based offence involving a child; and

• The person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an Australian offence.

Unlike most other types of visa cancellations, once the above criteria is met, the person’s visa is automatically cancelled. This is done without notice of intention to consider cancellation (NOICC) or an opportunity to respond. If your visa is cancelled under s.501(3A), the first you’ll hear of it is likely is when you receive your cancellation notice.

What Can I Do? 

 However, there are options to ‘un-cancel’ the visa or, in other words, to revoke a cancellation decision under s.501CA of the Migration Act 1958. S.501CA(4) gives the Minister or their delegate the power to revoke a cancellation decision if they are satisfied that:

(1)  The person passes the character test (that is, the factor that led to the cancellation in the first place was incorrect); or

(2)  There is ‘another reason why the original decision should be revoked’. In considering whether this is satisfied, consideration must be had towards the considerations set out in Ministerial Direction No. 90, which are:

a.    The protection of the Australian community from criminal or other serious conduct;

b.    Whether the conduct engaged in constituted family violence;

c.     The best interests of the minor children in Australia;

d.    Expectations of the Australian community

e.    International refoulement obligations

f.      Impact on victims

g.    Extent of impediments if removed

h.    Links to the Australian community

The cancellation notice will set out the original cancellation decision and the information relevant to the decision. A revocation request should respond to the provided information and make representations according to Ministerial Direction No. 90.

However, you will need to respond to the cancellation notice with a revocation request within 28 days of receiving the notice. This period cannot be extended so it is important to act quickly if you ever receive a cancellation notice. Applying out of time will usually be fatal.

How Can Agape Henry Crux Help

At Agape Henry Crux, our Accredited Specialist Immigration Lawyers and our team of immigration lawyers and migration agents are well trained to handle highly complex matters.  You can book one of our lawyers or agents to seek professional advice by calling 02-72002700 or email us to book in a time at info@ahclawyers.com.

We speak fluent English, Korean, Burmese, Japanese, Mandarin, Cantonese, Indonesian, and Malay. If this isn’t your language, we can also help you arrange an interpreter.

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact our office.