Australian Immigration Daily News

The Department of Home Affairs may refuse or cancel a visa if the visa applicant/holder does not pass the character test.  The Minister for Home Affairs, the Minister for Immigration Citizenship and Multicultural Affairs or one of their delegates, can make this decision. 

As per the AAT guidelines, a person whose visa has been refused or cancelled by a delegate under section 501 can apply to the AAT to have this decision changed.  The Administrative Appeals Tribunal (AAT) cannot review decisions made by the Minister personally, only decisions made by delegates.

Section 501 of the Migration Act 1958 lists a variety of reasons why someone may not pass the character test. Subsection(6) of section 501 has the full list of reasons, but examples include:

• because the person has a substantial criminal record
• because the person may represent a danger to the Australian community
• because the Minister is satisfied the person is not of good character due to their past and present criminal or general conduct.

A person whose visa has been refused or cancelled by a delegate under section 501 can apply to the AAT to have this decision changed.

It is worthwhile mentioning that Citizenship applicant can fail the character test due to a different threshold level. The level of discretion to refuse a citizenship application under the Citizenship Act 2007 is somewhat greater by comparison to the Migration Act 1958.

Section 501(3A) states that a visa must be cancelled when the visa holder has been sentenced to 12 months or more imprisonment, or has been found guilty of a sexually based crime involving a child. The visa holder must also be serving a full-time custodial sentence.  This is called a mandatory cancellation.

A mandatory cancellation may be revoked by a delegate of the Minister or the Administrative Appeals Tribunal if they are satisfied the person does in fact pass the character test or where there is another reason for revocation.  If a mandatory cancellation is revoked by a delegate or the Tribunal, the person whose visa was cancelled will get their visa back.  The Minister has the power to overturn this decision.

Section 501 provides further guidance about the application of the character test, including how to decide whether a person has a substantial criminal record. Further, a Ministerial Direction issued by the Minister for Immigration Citizenship and Multicultural Affairs guides any decision maker, including the AAT, when considering whether to refuse or cancel a visa where the applicant does not pass the character test.

Some recent 501 cases to come out of the AAT include:

Law and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1469 (25 May 2020)

This particular case deals with the non-revocation of mandatory cancellation of a visa  where visa was cancelled under s 501(3A) because applicant did not pass character test due substantial criminal record under s 501(7).  On the basis of the submission received, evidence heard at the AAT, decision set aside and remitted for reconsideration with directions.

Mailau and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1506 (7 May 2020)

This matter deals with the non-revocation of mandatory cancellation of visa where visa was cancelled under s 501(3A) because applicant did not pass the character test due substantial criminal record under s 501(7) and whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised.  During the hearing considerations in Direction No 79 were giving weight including the  trend of increasing seriousness in applicant’s criminal offending , risk of re-offending  as well as the protection and expectations of Australian community including minor children in Australia and strength nature and duration of ties. In this instance, the decision was affirmed.

What happens if you or your client is caught by s501?

First, do not panic and seek advice as soon as possible.  Each case is different, and the two cases mentioned above are just some of the issues which the Tribunal takes into account when assessing character.  It is important that you have enough time to gather any relevant reports, expert witnesses and formulate your case theory. 

If you are stuck and need assistance, email This email address is being protected from spambots. You need JavaScript enabled to view it. .