Different Types of Visa Cancellation Powers for Australian Migration
The Australian Migration Act contains several separate visa cancellation powers which are applicable in different situations. The power may be on a mandatory or discretionary basis, or by operation of law depending on the circumstances.
The Character Requirement is one of the most important visa criteria a person must continue to meet to continue to remain in Australia. Visa cancellations on the grounds of no longer meeting the Character requirement comes under s501 of the Migration Act.
What is a Discretionary Visa Cancellation?
If a person does not pass the character test, then their visa may be subject to cancellation. As this power is discretionary, factors such as the nature and seriousness of the conduct, the risk to the Australian community, the best interests of any Australian minor child, and international non-refoulement obligations must be considered before the cancellation power is exercised.
What is the Character Test?
This is a test listed in s501(6) of the Migration Act. The person must not:
Have a substantial criminal record
Be convicted of an offence whilst in immigration detention
Be convicted of escaping immigration detention
Be associated with or be a member of a group, organization or person who has or is involved in criminal conduct
Be involved in or have been convicted of people smuggling, human trafficking, war crimes, crime involving torture or slavery, grime of genocide etc.
Be a person not of good character
Be a person who is determined to be a risk to Australian community
Have been convicted of sexually based offences involving a child
Be assessed by ASIO as a risk to security
Not subject of an Interpol notice where it would be reasonable to infer the person would present a risk to Australian community
What is ‘Substantial Criminal Record’?
A substantial criminal record is if the person has been:
Sentenced to death
Sentenced to imprisonment for life
Sentenced to a term of imprisonment of 12 months or more
Sentenced to 2 or more terms of imprisonment where the total of those terms is 12 months or more
Acquitted of an offence on grounds of unsoundness of mind or insanity and as a result is detained in a facility or institution
On evidence, court found that the person committed the offence but was determined the person was not fit to plead, and as a result is detained in a facility or institution
What is ‘Good Character’?
Regardless of the penalties of any criminal convictions, the person may still fail the character test if they are found to be a person not of good character. This is very general and is based on the person’s past and present criminal and general conduct.
Therefore, any person who has any criminal record should seek legal advice immediately to see whether their visa may be subject to cancellation.
Mandatory Visa Cancellation
The s501 visa cancellation power can be mandatory in some circumstances. This occurs if the person:
Does not satisfy the character test on the basis of having a certain substantial criminal record or has been convicted of sexually based offences involving a child and
Is serving a sentence of imprisonment
Which substantial criminal records are caught?
If the person has been sentenced to death, sentenced to life, or sentenced to a term of imprisonment of 12 months or more. (However, if the person has been convicted of a sexually based offence involving a child, the penalty does not matter.)
Possible Revocation of Visa Cancellation
In some cases, you may be issued with a notice of intention to cancel prior to the Minister making the final decision. You are generally provided with 14 days to respond and provide comments however in some circumstances you will be directly cancelled.
After this, there may be an opportunity to request for revocation of the decision or to appeal the decision. The request for revocation must be made within 7 days (or 28 days for mandatory cancellations).
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, Mandarin, Cantonese, Indonesian, and Malay. If these aren’t your language, we can also help you arrange an interpreter.
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