Character Cancellation under section 501
Background to Character Cancellation
People holding Australian temporary or permanent residence visas who commit criminal offences in Australia can have their visas cancelled. Obtaining permanent residence in Australia does not make you ‘safe’ or protect you from having your visa cancelled on the grounds that you are a person of ‘bad character. If you fail the character test or you are perceived to be a person who is a risk to the Australian community, the Department of Immigration and Citizenship the government, and in some cases the Minister for Immigration personally, will consider using the power created by section 501 of the Migration act 1958 to cancel your Australian visa.
A person holding an Australian visa automatically fails the ‘character test’ if you have been sentenced to 12 months in prison for one or more offences. Conviction for the commission of a single, but more severe, criminal offence alone may be sufficient grounds for the Australian government to cancel your visa, or repeated convictions for less sever criminal offences can also lead to the cancellation of your visa. There are also various other considerations which the DIBP will look at to determine if it considers you to be of bad character and therefore, move to cancel your visa.
The Cancellation Process
The first stage is to send you a notice warning you that the government is considering cancelling your visa and inviting you to provide a response as to why you say that your visa should not be cancelled. This document is called a Notice of Intention Considering Cancellation or NOICC. The time frame for response will be set out in the NOICC and you must respond in this time frame or your visa will be cancelled.
If you have received a Notice of Intention to Consider Cancellation (NOICC), or hold an Australian visa and have committed a criminal offence, call us now as time frames for response a limited and often cannot be extended.
In considering your response, the case officer will balance up various matters including the need to protect the Australian community, best interests of any Australian children affected by their decision to cancel or not, seriousness and nature of the criminal conduct, the strength and nature of your ties to Australia and other conduct which shows you are not a person of bad character ( This is not an exhaustive but only indicative list). Ministerial Direction No 65 prescribes what a case officer must consider and what you should address in your response.
A decision will then be made either to cancel your visa or not. A decision to not cancel your visa can be revisited if you then commit a further criminal offence or are otherwise involved in conduct that engages the section 501 cancellation power. The Minister for Immigration and Border Protection also can step in personally and cancel your visa on ‘national interests’ grounds. This can happen at any stage and even after a case officer has decided in your favour and not cancelled your visa.
People in Australian prisons holding temporary or permanent residence visas can have their visas cancelled before serving the full term of their sentence. If you are in prison serving a sentence of 12 months or more, your visa must be cancelled. Once your visa is cancelled, you will not be paroled and will be taken into immigration detention and ultimately, deported unless visa cancellation is over overturned on appeal in the appropriate Australian Tribunal or Court.
What to do next and how to apply?
Getting the right advice upfront is essential so contact for a free no obligation discussion with one of our advisors who are ready and waiting to assist you applying for your visa.
We will assess your situation on an individual basis and provide you with the best advice to make your stay in Australia hassle-free.