2 When can a visa be refused or cancelled under section 501?

2.1 A two stage decision-making process

There are two stages of the decision-making process under section 501. At the first stage, the Minister or the delegate must consider whether the person passes the character test (referred to as the ‘threshold test for refusal or cancellation’ in the sections below). The character test is set out in subsection 501(6), and is discussed in section 2.3 below.

If the Minister or the delegate is satisfied that the threshold test under subsection 501(1), (2), or (3) for refusal or cancellation has been met, this triggers the second stage of the decision-making process under section 501. At this stage, the Minister or the delegate must decide whether to exercise their discretion to refuse or cancel the person’s visa.

To guide the decision-making process under section 501, the Minister can give a Direction under section 499 of the Migration Act. The current Ministerial Direction is Direction No. 55, which commenced on 1 September 2012.[3] Officers of the Department of Immigration and Citizenship (DIAC) making visa cancellation and refusal decisions under subsections 501(1) and (2) must comply with this Direction.[4] The Direction does not apply to visa refusal or cancellation decisions made by the Minister personally. In exercising his or her personal powers, the Minister may refer to the Direction, but he or she is not obliged to follow it (the Minister’s personal powers are discussed further in section 5.3 below).

2.2 Stage 1: The threshold test for refusal or cancellation

(a) Refusal or cancellation by the Minister or a delegate under subsections 501(1) or (2)

The Minister may refuse to grant a visa to a person under section 501(1) if the person does not satisfy the Minister that he or she passes the character test.

A person’s visa may be cancelled under section 501(2) of the Migration Act if:

  • the Minister reasonably suspects that the person does not pass the character test, and
  • the person does not satisfy the Minister that they pass the character test.

The power in subsections 501(1) and 501(2) can be exercised by the Minister personally, or by a delegate of the Minister. In practice, certain DIAC officers usually act as the Minister’s delegates in making such decisions.

(b) Refusal or cancellation by the Minister under subsection 501(3)

The Minister may refuse to grant a visa or may cancel a person’s visa under subsection 501(3) of the Migration Act if:

  • the Minister reasonably suspects that the person does not pass the character test and
  • the Minister is satisfied that the refusal or cancellation is in the national interest.

This power can only be exercised by the Minister personally. ‘National interest’ is not defined – it is a matter for the Minister to determine what constitutes the national interest in making a decision about whether to refuse or cancel a person’s visa.

It is also important to note the Minister’s personal powers under sections 501A and 501B of the Migration Act. These powers enable the Minister to set aside an initial decision by a delegate or the Administrative Appeals Tribunal in relation to refusal or cancellation under section 501, and substitute it with his or her own decision to refuse or cancel the visa on character grounds. These personal powers are discussed in section 5.3 below.

2.3 The character test

(a) Introduction

Section 501 of the Migration Act provides that a person does not pass the character test if they fall within any of the grounds specified in subsections 501(6)(a) to (d). These grounds can be grouped into five broad categories:

  • substantial criminal record
  • conviction for immigration detention offences
  • association with persons suspected of engaging in criminal conduct
  • past and present criminal or general conduct
  • significant risk of particular types of future conduct.[5]

Further guidance on the interpretation and application of these grounds is contained in Direction No. 55.[6] Each of these categories is discussed briefly below.

(b) Substantial criminal record

A person will not pass the character test if they have a ‘substantial criminal record’, as defined in subsection 501(7).[7] For the purposes of the character test, a person has a ‘substantial criminal record’ if they have been:

  • sentenced to death or to imprisonment for life
  • sentenced to imprisonment for 12 months or more
  • sentenced to two or more terms of imprisonment where the total of these terms is two years or more
  • acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result they have been detained in a facility or institution.[8]

A person who has a ‘substantial criminal record’ will automatically fail the character test, regardless of any mitigating factors which attended their offending. However, mitigating factors may be taken into account at the second stage under section 501, when the decision-maker is considering whether to exercise the discretion to refuse or cancel the person’s visa (discussed in section 2.4 below).

(c) Conviction for immigration detention offences

In 2011 the character test in section 501 was amended to include additional grounds upon which the Minister or a delegate may decide to refuse to grant, or to cancel, a person’s visa.[9] These amendments to the character test were introduced following disturbances in the Christmas Island and Villawood Immigration Detention Centres in March and April 2011.[10] Due to these amendments, a person will fail the character test if that person has been convicted of any offence which was committed while the person was in immigration detention, or during or after an escape from immigration detention, before being re-detained.[11] Also, an escape from immigration detention is itself an offence which will result in the person failing the character test under section 501.[12]

The effect of these amendments is that if a person commits an offence while in (or while escaping from) immigration detention, pursuant to subsection 501(6)(aa) or (ab) their criminal behavior will trigger the power in section 501 to refuse or cancel their visa, even if the offence is not serious enough to warrant a sentence of 12 months’ imprisonment (or any period of imprisonment). Under subsection 501(6)(aa) or (ab) therefore, a lower level of criminality may cause a person to fail the character test, because of the context in which their offence was committed, as compared to the criminality required for a ‘substantial criminal record’ for the purposes of subsection 501(6)(a).

Also, unlike under the ground of ‘past and present criminal or general conduct’ in subsection 501(6)(c) (discussed below), under subsections 501(6)(aa) and (ab) there is no consideration of the severity (or lack thereof) of the offending, or any mitigating circumstances. If an ‘immigration detention offence’ conviction has been recorded, the person will automatically fail the character test.

(d) Association with persons suspected of engaging in criminal conduct

A person does not pass the character test under subsection 501(6)(b) if the person ‘has or has had an association with someone else, or with a group or organisation, whom the Minister reasonably suspects has been or is involved in criminal conduct’.[13]

Direction No. 55 requires that in establishing ‘association’ for the purposes of the character test, decision-makers are to consider:

  • the nature of the association
  • the degree and frequency of association the person had or has with the individual, group or organisation, and
  • the duration of the association.[14]

Direction No. 55 also requires decision-makers to assess whether the person was sympathetic with, supportive of, or involved in the criminal conduct of the person, group or organisation, and directs that ‘mere knowledge of the criminality of the associate is not, in itself, sufficient to establish association’.[15] The association must have some negative bearing upon the person’s character in order for the person to fail the character test on this ground.[16]

(e) Past and present criminal or general conduct

Under subsection 501(6)(c) of the Migration Act, a person does not pass the character test if, having regard to the person’s past and present criminal conduct and/or general conduct, the person is ‘not of good character’.

In considering whether a person is ‘not of good character’, Direction No. 55 requires decision-makers to take into account ‘all the relevant circumstances of the particular case ... to obtain a complete picture of the person’s character’, including evidence of ‘recent good behaviour’.[17]

In determining whether a person’s past or present criminal conduct means that they are ‘not of good character’, decision-makers are to consider:

  • the nature, severity, frequency and cumulative effect of the offence/s
  • any surrounding circumstances which may explain the criminal conduct
  • the person’s conduct since the offence/s were committed, including:
    • the length of time since the person last engaged in criminal conduct
    • any evidence of recidivism or continuing association with criminals; any pattern of similar offences; or any pattern of continued or blatant disregard or contempt for the law
    • ‘any conduct which may indicate character reform’.[18]

The consideration under subsection 501(6)(c)(ii) of a person’s past or present general conduct allows the decision-maker to take into account ‘a broader view of a person’s character where convictions may not have been recorded or where the person’s conduct may not have constituted a criminal offence’.[19] In considering this broader view of character, the decision-maker should take into account all relevant circumstances, including evidence of rehabilitation and any relevant periods of good conduct’.[20]

Direction No. 55 sets out the following factors which may be considered in determining whether a person’s past or present general conduct means that they are ‘not of good character’:

  • whether the person has been involved in activities which show contempt or disregard for the law or human rights (such as war crimes, crimes against humanity, terrorist activities, drug trafficking, ‘political extremism’, extortion, fraud, or ‘a history of serious breaches of immigration law’)
  • whether the person has been removed or deported from Australia or another country, and the circumstances that led to the removal or deportation
  • whether the person has been dishonourably discharged or discharged prematurely from the armed forces of another country as the result of disciplinary action in circumstances, or because of conduct, that in Australia would be regarded as serious.[21]

(f) Significant risk of particular types of future conduct

Subsection 501(6)(d) provides that a person does not pass the character test if there is a significant risk that, while in Australia, the person would:

  • engage in criminal conduct
  • harass, molest, intimidate or stalk another person
  • vilify a segment of the Australian community
  • incite discord in the Australian community or in a segment of the community or
  • represent a danger to the Australian community or to a segment of the community, whether by way of being liable to become involved in activities that are disruptive to, or in violence threatening harm to, that community or segment, or in any other way.[22]

Direction No. 55 provides that these ‘significant risk’ grounds are enlivened if there is evidence suggesting that there is ‘more than a minimal or remote chance that the person, if allowed to enter or remain in Australia, would engage in [the prescribed] conduct’.[23] It is not sufficient to find that the person has engaged in such conduct in the past – there must be a significant risk that the person would engage in such conduct in the future.[24]

Direction No. 55 also states that the operation of the last three grounds of ‘future conduct’ set out above must be balanced against Australia’s ‘well established tradition of free expression’. The Direction states that these grounds are not intended to be used in order to deny entry or continued stay of persons merely because they hold and are likely to express unpopular opinions, even if those opinions may attract strong expressions of disagreement and condemnation from some elements of the Australian community.[25]

2.4 Stage 2: Factors relevant to the exercise of discretion to refuse or cancel a visa

(a) The relevance of Ministerial Direction No. 55 to the exercise of the discretion

As mentioned above, if a person fails to satisfy the Minister or a delegate that he or she passes the character test, the person’s visa is not automatically refused or cancelled. The decision-maker must decide whether to exercise their discretion under section 501 to refuse or cancel the person’s visa.

In making that decision, the Minister’s delegate is required to consider a number of factors, as set out in Direction No. 55. Part A of the Direction sets out a range of primary considerations and other considerations which must be taken into account (where relevant) when deciding whether to cancel a visa. Part B of the Direction sets out those primary and other considerations which must be taken into account when deciding whether to refuse a visa application. An overview of these considerations is provided below.

In addition to taking into account the considerations in Part A or Part B, the Direction requires the decision-maker, to ‘determine whether the risk of future harm by a non-citizen is unacceptable’.[26] To assess this, the decision-maker is required to undertake a balancing exercise and to consider ‘the likelihood of any future harm, the extent of the potential harm if it should occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community’.[27]

Although the Direction sets out primary and other considerations which must be considered by DIAC officers in exercising their discretion, it does not dictate outcomes. Also, as noted above, the Minister is under no obligation to follow the Direction when making a personal decision to refuse or cancel a visa on character grounds under section 501.

(b) Primary considerations

Direction No. 55 provides that in deciding whether to refuse or cancel a person’s visa under section 501, the following primary considerations must be taken into account:[28]

  • the protection of the Australian community from criminal or other serious conduct[29]
  • the best interests of minor children in Australia[30]
  • whether Australia owes international non-refoulement obligations to the person[31] (under the Convention Relating to the Status of Refugees (Refugee Convention),[32] the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT),[33] and the International Covenant on Civil and Political Rights (ICCPR).[34]

When considering whether to cancel a visa, the decision-maker must take into account the additional primary considerations of ‘the strength, duration and nature of the person’s ties to Australia’.[35]

(c) Other considerations

Direction No. 55 sets out a range of other considerations that may be relevant and, if so, must be taken into account in determining whether to refuse or cancel a visa under section 501. These considerations are generally to be given less weight than the primary considerations set out above.[36] These other considerations include the impact of refusal or cancellation on:

  • the person’s immediate family in Australia (if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely)[37]
  • Australian business interests[38]
  • members of the Australian community, including victims of the person’s criminal behaviour and those victims’ families.[39]

Again, in the case of cancellation of a visa (rather than refusal) there is an additional consideration, that is ‘the extent of any impediments that the person may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards’ in light of:

  • the person’s age and health
  • any substantial language or cultural barriers, and
  • any ‘social, medical and/or economic support available to them in that country’.[40]

[3] Minister for Immigration and Citizenship, Direction No. 55 - Visa refusal and cancellation under s 501, given under section 499 of the Migration Act 1958 (Cth) and signed on 25 July 2012 (Ministerial Direction No. 55). At www.immi.gov.au/media/fact-sheets/79-ministerial-direction-55.pdf (viewed 24 June 2013).

[4] See Migration Act 1958 (Cth), s 499(2A).

[5]Migration Act 1958 (Cth), s 501(6).

[6] Ministerial Direction No. 55, note 3.

[7]Migration Act 1958 (Cth), s 501(6)(a).

[8]Migration Act 1958 (Cth), s 501(7).

[9] See the Migration Amendment (Strengthening the Character Test and Other Provisions) Act 2011 (Cth).

[10] Commonwealth, Parliamentary Debates, House of Representatives, 11 May 2011, p 3509 (The Hon Chris Bowen MP, Minister for Immigration and Citizenship).

[11]Migration Act 1958 (Cth), s 501(6)(aa).

[12]Migration Act 1958 (Cth), s 501(6)(ab).

[13]Migration Act 1958 (Cth), s 501(6)(b).

[14] Ministerial Direction No. 55, note 3, Annex A, Section 2, para 3(2).

[15] Ministerial Direction No. 55, note 3, Annex A, Section 2, para 3(3).

[16] Ministerial Direction No. 55, note 3, Annex A, Section 2, para 3(3).

[17] Ministerial Direction No. 55, note 3, Annex A, Section 2, paras 4(3) and (4).

[18] See further Ministerial Direction No. 55, note 3, Annex A, Section 2, para 4.1(1).

[19] Ministerial Direction No. 55, note 3, Annex A, Section 2, para 4.2(1).

[20] Ministerial Direction No. 55, note 3, Annex A, Section 2, para 4.2(1)(a).

[21] Ministerial Direction No. 55, note 3, Annex A, Section 2, para 4.2(2).

[22] For further detail regarding how these grounds are to be interpreted, see Ministerial Direction No. 55, note 3, Annex A, Section 2, paras 5.1-5.3.

[23] Ministerial Direction No. 55, note 3, Annex A, Section 2, para 5(2).

[24] Ministerial Direction No. 55, note 3, Annex A, Section 2, para 5(3).

[25] Ministerial Direction No. 55, note 3, Annex A, Section 2, para 5.3(2).

[26] Ministerial Direction No. 55, note 3, Section 2, para 7.

[27] Ministerial Direction No. 55, note 3, Section 2, para 7.

[28] Ministerial Direction No. 55, note 3, Part A, para 9 and Part B, para 11.

[29] Further guidance on how decision-makers should assess the level of risk of harm to the community is provided in Ministerial Direction No. 55, note 3, Part A, paras 9.1, 9.1.1 and 9.1.2 and Part B, paras 11.1, 11.1.1 and 11.1.2. Under the Direction this assessment should include consideration of the nature and seriousness of the relevant conduct, and the risk that the conduct may be repeated.

[30] For further detail see Ministerial Direction No. 55, note 3, Part A, para 9.3 and Part B, para 11.2.

[31] For further detail see Ministerial Direction No. 55, note 3, Part A, para 9.4 and Part B, para 11.3. Note that s 36 of the Migration Act contains ‘Australia’s interpretation of these obligations’ and the tests which should be applied by decision-makers in order to comply with these obligations: see Ministerial Direction No. 55, note 3, Part A, para 9.4(3) and Part B, para 11.3(3).

[32] Opened for signature 28 July 1951, 189 UNTS 137, (entered into force 22 April 1954), as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (Refugee Convention). At http://www.austlii.edu.au/au/other/dfat/treaties/1954/5.html (viewed 24 June 2013).

[33] Opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987) (CAT). At http://www.austlii.edu.au/au/other/dfat/treaties/ATS/1989/21.html (viewed 24 June 2013).

[34] Opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976) (ICCPR). At http://www.austlii.edu.au/au/other/dfat/treaties/1980/23.html (viewed 24 June 2013).

[35] Ministerial Direction No. 55, note 3, Part A, para 9.2.

[36] Ministerial Direction No. 55, note 3, Section 2, para 8(4).

[37] Ministerial Direction No. 55, note 3, Part A, para 10(1)(a), and Part B, para 12(1)(a).

[38] Ministerial Direction No. 55, note 3, Part A, para 10(1)(b), and Part B, para 12(1)(c).

[39] Ministerial Direction No. 55, note 3, Part A, para 10(1)(c), and Part B, para 12(1)(b).

[40] Ministerial Direction No. 55, note 3, Part A, para 10(1)(d).