Section 501 Visa Cancellation Case Study

This assignment presents a case study involving an individual named Smithers facing possible visa cancellation under Australia's Section 501 of the Migration Act. The analysis delves into Smithers' escalating offenses, the influence of peer pressure and alcohol, and previous cases where similar conduct resulted in deportation. It examines legal avenues for Smithers to challenge a potential cancellation decision, including requests for revocation or appeals with the AAT. The assignment draws upon relevant legislation, case law, and expert opinions to provide a comprehensive understanding of the complexities surrounding Section 501 visa cancellations.

[Student name/number:] 1
A CASE STUDY ANALYSIS ON VISA CANCELLATION
[Author(s) name(s):]
Migration Law and Practice
BLO5607- SUBJECT C: Visa Compliance, Cancellation and Review
Tutor(s) name(s):
Victoria University

[Student name/number:] 2
Table of Contents
Introduction................................................................................................................................2
An Evaluation of the Prospects of Success for the NOICC.......................................................3
Options Available to the Visa Holder........................................................................................7
Conclusion..................................................................................................................................8
Bibliography...............................................................................................................................9
A. Articles/Books/Reports.....................................................................................................9
B. Cases................................................................................................................................10
C. Legislation.......................................................................................................................10
D. Other................................................................................................................................10

[Student name/number:] 3
Introduction
The case study describes a scenario where a New Zealand citizen, John Smithers, is faced
with possible visa cancellation based on character grounds as provided for under section 501
of the Migration Act 1958 (Cth)1. Generally, the Act 1958 provides that a non-citizen’s visa
is subject to cancellation where they fail to satisfy the Minister for Immigration or their
delegates that they have passed the character test described under the Act.2 Ultimately,
cancellation may result in detention and deportation of the visa holder in question; however,
various factors must be considered prior to cancelling a visa.3 The character test mentioned
above considered criminal records and conduct that may pose a national threat; a visa holder
with a ‘substantial criminal record’ or who has been convicted of certain offences is likely to
fail the character test and as such may be at risk of visa cancellation.4
John Smithers, the visa holder in question, is a 24-year-old New Zealand Citizen who has
been living and working in Australia for the past 10 years under a Special Category
(Temporary) Sub-Class 444 visa together with his elderly parents. Over the past five years,
while working at Toyota, Smithers appears to have fallen into bad company and has been
faced with various convictions. He has been charged with drunken behaviour, driving without
a license, assault, careless driving and most recently burglary with a dangerous weapon. His
most recent charge led to a conviction of 3 months imprisonment and a three thousand dollar
compensation penalty. John recently found out he would be becoming a father and this has
triggered a sense of remorse; he has sort treatment and it is believed that he will be
rehabilitated. However, his previous conduct has led to a review of his visa and as such he
has been issued with a Notice of intention to Consider Cancellation (NOICC); the notice cites
1 Migration Act 1958 (Cth), herein referred to as the Act 1958
2 Australian Human Rights Commission, Background paper: Immigration detention and visa cancellation under
section 501 of the Migration Act (March 2010) Refworld http://www.refworld.org/pdfid/4ec3a6052.pdf
3 CCH Australia, Australian Master Human Resources Guide (8th ed, CCH Australia Ltd 2010) 701
4 Migration Act 1958 (Cth), s 501

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character grounds under s 501 (2) of the Act 1958. The following discourse aims to examine
the prospects of success for cancellation with regard to the notice as well as any options
available to John Smithers in the event that his visa is cancelled.
An Evaluation of the Prospects of Success for the NOICC
According to s 501 (2) of the Act 1958, the Minister may cancel a visa already granted to a
person where they have reasonable justification to suspect the person has failed the character
test set out under s 501 (6), or where the visa holder fails to satisfy the minister that they have
passed the test; this provision implies that a visa holder has the right to respond or challenge
the Minister’s suspicions by providing proof that they pass the test within the reasonable time
frame which is usually set out in the NOICC.5 As such, although the ultimate decision lies
with the Minister, communication with the visa holder is necessary to avail them an
opportunity to defend their character.6
As aforementioned, the Act 1958 sets out criteria for the character test which guide the
Minister in determining the fate of the visa holder. The criteria set out under s 501 (6) (a) to
(d) include: “a substantial criminal record, conviction for immigration detention offences,
association with persons or organisations suspected of engaging in criminal conduct, past and
present criminal or general conduct and significant risk in particular types of future
conduct”.7 Criminal conduct is determined by length or gravity of a sentence; that is, a person
sentenced to death or life imprisonment, a sentence of 12months or more imprisonment, two
or more imprisonment terms which culminate in a total of 12 or more months imprisonment
and acquittal on ground of mental capacity which results in detention at a facility.8
5 Turner Coulson Immigration Lawyers, Character cancellation under section 501 (2017) Turner Coulson
Immigration Lawyers http://tcilawyers.com.au/character-cancellation-under-section-501-2.html
6 Alan Freckelton, Administrative Decision-Making in Australian Migration Law (ANU eText, 2015) 85
7 Australian Human Rights Commission, Background paper: Human rights issues raised by visa refusal or
cancellation under section 501 of the Migration Act (2013) Australian Human Rights Commission
https://www.humanrights.gov.au/sites/default/files/document/publication/section_501_paper.pdf
8 ibid

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In Tewao v Minister for Immigration and Citizenship (2012)9 Mr Tewao, a New Zealand
citizen had been convicted of aggravated robbery and sentenced to three years and three
months imprisonment. The prison length satisfied the 12-month criteria and as such created a
substantial criminal record which created character grounds for visa cancellation. Mr Tewao
attempted to challenge the decision but courts upheld that his conduct was of a serious nature
and that there was a low-moderate risk that the conduct could be repeated. The nature and
seriousness of the offence amounted to a national interest to cancel the visa.10
In determining whether a visa holder is at risk of cancellation based on grounds of
imprisonment sentences, it is important to note that aggregate sentences, time on remand,
time serves as well as suspended sentences are considered.11 Under section 501 (3A) time
serves may be considered in determining the 12-month imprisonment condition; that includes
a past sentence or an ongoing sentence. Further, where a visa holder has been convicted with
multiple sentences which add up to 12 or more months of imprisonment then they may be at
risk of visa cancellation under the discretionary provisions of s 501 (7) of the Act 1958.
Additionally, suspended sentences are considered for the purposes of calculating the 12
months imprisonment condition as held in Meng Kok Te v Minister for Immigration and
Ethnic Affairs [1999].12
The Ministerial Direction No 65 provides further guidelines for consideration with regard to
visa refusal and cancellation under the provisions of section 501 of the Act 1958. According
to the direction, one of the considerations to make is the nature and seriousness of the
conduct in question.13 With regard to this, the Minister or decision maker considers the extent
of violence involved, the nature of the crime such as sexual crimes, and the vulnerable group
9 Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39
10 See also Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203 which goes to show that
courts uphold the discretion of the Minister to determine conduct and national interest.
11 Victoria Legal Aid, Mandatory Visa Cancellations-Information for Lawyers (2017) Victoria Legal Aid.
12 Meng Kok Te v Minister for Immigration and Ethnic Affairs [1999] FCA 111; See Stretton v Minister for
Immigration and Border Protection (No. 2) [2015] FCA 559

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at risk or who were victim to the crime. Vulnerable groups include the elderly, minors and the
disabled community members among others. Further, the decision maker considers whether
there is a rising trend or increasing seriousness where the visa holder is a repeat offender.
Statistics show some of the offences which have led to visa cancellations include assault,
robbery, people smuggling and murder among other violent and non-violent offences.14
The Minister or their delegate is tasked with providing certain supporting information as a
matter of policy when a Notice of Intention to Consider Cancellation is issued under s 501
(2). According to the Procedures Advice Manual (PAM), the notice should include
information that highlights which alleged activities or conduct raise suspicion under s 501(2).
Where the ground relied upon is a substantial criminal record then the criminal history or
official records highlighting the conviction should be referenced. This should include any
further evidence or information at the department’s disposal which has been relied on to
prepare the notice. Further, the visa holder should be invited to comment or challenge the
grounds outlined in the NOICC and the manner for response and jurisdiction for the same
should be provided for with the notice.15
Having considered the legal requirements and supporting information necessary for the
success of a NOICC, the discourse proceeds to apply these findings to the case study in
question. Firstly, in considering the establishment of a substantial criminal record, the length
of time of imprisonment is a significant factor. John Smithers has been convicted twice, the
first conviction carried a two-month sentence which was suspended, the second a three-
month sentence which he was to serve. The three-month sentence does not meet the threshold
set under the provisions of the Act 1958, however, as aforementioned, suspended convictions
13 Ministerial Direction No 65- Direction under section 499 Visa refusal and cancellation under s 501 and
revocation of a mandatory cancellation of visa under s 501CA.
14 Colin Neave AM, The Department of Immigration and Border Protection: The Administration of Section 501
of the Migration Act 1958 Report No 08 of 2016 (Commonwealth Ombudsman, 2016)
15 Freckelton (n 6) 86

[Student name/number:] 7
are considered for purposes of counting. The overall sentence totals to 5 months, this is still
significantly below the set threshold of 12 months. However, courts also consider the
seriousness of the offence and the risk of future offences. On his second offence, John
Smithers was charged with assault, in his third offence, he was charged with burglary with a
lethal weapon. According to statistics, these offences are common considerations for
cancellation by the department. Further, his conduct illuminates a trend whereby he appears
to be under peer pressure and alcohol influence when he commits offences. However, the
seriousness of the offences appears to be escalating. Guided by the rationale in Tewao v
Minister for Immigration and Citizenship [2012], these would be sufficient grounds for
cancellation. However, the decision maker, guided by the Direction No 65, has to consider
other factors such as the impact on family members as well as prospects of reform or
rehabilitation. All in all, the final decision lies at the discretion of the Minister and as per the
holding in Tewao v Minister for Immigration and Citizenship [2012], the cancellation has
sufficient grounds for success.
Options Available to the Visa Holder
According to s 501 CA of the Act 1958, once a decision to cancel a visa is made, the Minister
is required to give the non-citizen notice of the decision and invite them to seek revocation
guided by the provisions of the Migration Regulations 1994 (Cth). Regulation 2.52 provides
for the procedure for making representations to the minister citing reasons why the decision
should be revoked. The representations must be made within 28 days after the original notice
is given and should be in writing including relevant particulars with regard to the former visa
holder. If no action is taken by the visa holder within the 28-day timeline, the right to request
revocation of the decision to cancel is lost.16 Additionally, where a section 501 cancellation is
made by a delegate it is possible to appeal or apply for review at the Administration Appeals
16 Victoria Legal Aid (n 10)

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Tribunal,17 however, decisions by Ministers can only be subjected to the aforementioned
request for revocation.18
Guided by the aforementioned provisions, where the decision for cancellation was made by a
delegate, John Smithers has the right to apply for appeal at the Administrative Appeals
Tribunal (AAT) and highlight reasons why the decision was contrary to the character test and
other relevant considerations highlighted under the Direction No. 65. Where he is dissatisfied
with the decision of the tribunal, further legal recourse can be sought in court as was the case
in Tewao v Minister for Immigration and Citizenship [2012]. It is likely, if John Smithers
opts to challenge the delegate’s decision, that the case would take longer than the current
sentence, as such, it is important to note that he may be held in detention as his appeal is
determined. However, where the decision to cancel the visa was issued by the Minister under
the discretionary powers provided for in the Act 1958, John Smithers has the option of
applying for revocation within 28 days of notice of the decision. This application, as
aforementioned, must be in writing and subject to the provisions of the Act 1958. Failure to
apply for revocation within the stipulated timeframe would lead to loss of any recourse and as
such John Smithers would likely be deported.
Conclusion
Generally, the case study in question explores the grounds and considerations for visa
cancellation as well as options available to visa holders whose visas are cancelled under s 501
grounds. According to these provisions, the Minister reserves the right to cancel a visa where
they have reasonable grounds to suspect that the visa holder has failed the character test. The
17 Administrative Appeals Tribunal, Fact Sheet- Expedited Review of Decisions Under Section 501 Or 501CA of
the Migration Act 1958 (2017) http://www.aat.gov.au/AAT/media/AAT/Files/Fact%20Sheets/Fact-Sheet-for-
Applicants-Expedited-review-of-s501-or-501CA-decisions.pdf
18 Freckelton (n 6) 88; See Department of Immigration and Border Protection, Fact Sheet- The Character
Requirement (2017) Australian Government https://www.border.gov.au/about/corporate/information/fact-
sheets/79character

[Student name/number:] 9
test considers the conduct of the visa holder, particularly criminal conduct. Where the visa
holder has been convicted or portrays conduct that places the community at risk, the Minster
can cancel their visa. The criteria for cancellation include imprisonment for 12 months and
more, violent or sexual offence crimes, association with criminal groups among others. As
discussed above, the nature and seriousness of the offence or conduct and possibility for
repeat offences are also significant in determining the character of the visa holder. The visa
cancellation process is likely to succeed as John Smithers conduct has been previously
violent, additionally, the degree of seriousness has been escalating with each offence and peer
pressure and alcohol influence appear to play a major role in contributing to his conduct. In
previous cases, these elements have led to cancellation and deportation of visa holders.
However, Smithers convictions do not reach the 12-month threshold and as such he has
ground to attempt to convince the Minister or the tribunal to reverse a cancellation decision.
This can be done by making a request for revocation where the decision was made by the
Minister or an application for appeal with the AAT where the decision was made by a
delegate.
Bibliography
A. Articles/Books/Reports
Administrative Appeals Tribunal, Fact Sheet- Expedited Review of Decisions under Section
501 Or 501CA of the Migration Act 1958 (2017) Administrative Appeals Tribunal

[Student name/number:] 10
http://www.aat.gov.au/AAT/media/AAT/Files/Fact%20Sheets/Fact-Sheet-for-Applicants-
Expedited-review-of-s501-or-501CA-decisions.pdf
Freckelton, Alan, Administrative Decision-Making in Australian Migration Law (ANU eText,
2015)
Australian Human Rights Commission, Background paper: Human rights issues raised by
visa refusal or cancellation under section 501 of the Migration Act (2013) Australian Human
Rights Commission
https://www.humanrights.gov.au/sites/default/files/document/publication/
section_501_paper.pdf
Australian Human Rights Commission, Background paper: Immigration detention and visa
cancellation under section 501 of the Migration Act (March 2010) Refworld
http://www.refworld.org/pdfid/4ec3a6052.pdf
CCH Australia, Australian Master Human Resources Guide (8th ed, CCH Australia Ltd 2010)
Neave, Colin AM, The Department of Immigration and Border Protection: The
Administration of Section 501 of the Migration Act 1958 Report No 08 of 2016
(Commonwealth Ombudsman, 2016)
Department of Immigration and Border Protection, Fact Sheet- The Character Requirement
(2017) Australian Government https://www.border.gov.au/about/corporate/information/fact-
sheets/79character
Turner Coulson Immigration Lawyers, Character cancellation under section 501 (2017)
Turner Coulson Immigration Lawyers http://tcilawyers.com.au/character-cancellation-under-
section-501-2.html
Victoria Legal Aid, Mandatory Visa Cancellations-Information for Lawyers (2017) Victoria
Legal Aid

[Student name/number:] 11
B. Cases
Tewao v Minister for Immigration and Citizenship [2012] FCAFC 39
Meng Kok Te v Minister for Immigration and Ethnic Affairs [1999] FCA 111
Stretton v Minister for Immigration and Border Protection (No. 2) [2015] FCA 559
Minister for Immigration and Citizenship v Haneef [2007] FCAFC 203
C. Legislation
Migration Act 1958(Cth)
Migration Regulations 1994 (Cth)
D. Other
Ministerial Direction No 65-Direction under section 499 Visa refusal and cancellation under s
501 and revocation of a mandatory cancellation of a visa under s 501CA. (2014)