Character Grounds Visa Cancellation

This assignment delves into the implications of a visa being canceled in Australia due to a failure to meet character requirements. It outlines the potential repercussions for an individual named John, such as detention and deportation. The document also explains how John can challenge this decision through avenues like the Administrative Appeals Tribunal (AAT) and higher courts.

Running head: VISA COMPLIANCE, CANCELLATION AND REVIEW
Visa Compliance, Cancellation and Review
Name of the Student
Name of the University
Author Note

1VISA COMPLIANCE, CANCELLATION AND REVIEW
John Smithers being a New Zealand citizen has been granted Temporary subclass 444
visa, which permits any New Zealanders to reside and work in Australia if the person remains a
citizen of New Zealand. This visa does not entitle the holder with the same benefits and rights
that an Australian citizen is entitled to enjoy. Although he is a successful employee in Toyota he
his personal behavior is unsatisfactory.
John received a Notice of Intention to Consider Cancellation (NOICC) of his visa under
section 501(1) of the Migration Act 1958 on character grounds. According to section 501 of the
Migration Act 1958 (Cth) (Migration Act), any visa of a non-citizen may be refused or cancelled
if such holder has failed to convince the Minister for Immigration and Citizenship (the Minister)
or a delegate of the Minister that they have passed the ‘character test’1.
There are two essential decision-making process under section 501 where the Minister or
the delegate, at the first stage, must take into consideration of the fact whether the visa holder has
successfully passed the character test or the threshold test for refusal or cancellation. If the
Minister or the delegate of the Minister were of the opinion that the holder has passed the
threshold test under section 501(1), (2) or (3) for cancellation or refusal of the visa, it would lead
to the second stage of decision-making process that is stipulated under section 501 of the
Migration Act 1958.
In the second stage, the Minister or the delegate would make a decision whether they
should implement their discretion to cancel or refuse the visa of the visa holder2. According to
the commencement of the Ministerial Direction No. 55, the Officers of the Department of
Immigration and Citizenship (DIAC) are required to comply with the Direction while making
1 Migration Act 1958 (Cth).
2Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global perspective. Stanford
University Press, 2014.

2VISA COMPLIANCE, CANCELLATION AND REVIEW
cancelling or refusal decisions under section 501(1) and 501(2) of the Migration act 1958.
However, the direction shall not be applicable to visa cancellation or refusal decision that the
Minister has personally made. Although the Minister may refer to the direction while exercising
his personal powers to make refusal or cancellation decisions, nevertheless, he is not obligated to
follow the Directions.
Cancellation or Refusal by the Minister or delegate under section 501(1) or (2) of the
Migration Act 1958 (Cth)
According to section 501(1), the Minister is entitled to grant or refuse a visa if such person
fails to convince that he/she passed the character test3. The visa can be cancelled under section
501(2) of the Migration Act on the following grounds:
 The Minister is under rational suspicion that the visa holder/applicant has failed to
qualify the character test;
 The visa holder/applicant failed to assure the Minister that he/she had passed the
character test.
The Minister or a delegate may exercise its discretionary power conferred upon him by
section 501(1) and 501(2) of the Act4. Some of the DIAC officers usually act as the delegates of
the Ministers while making such refusal or cancellation of visa decisions.
3 Bucerius, Sandra M., and Michael H. Tonry, eds. The Oxford handbook of ethnicity, crime, and immigration.
Oxford Handbooks, 2014.
4Aas, Katja Franko, and Mary Bosworth, eds. The borders of punishment: Migration, citizenship, and social
exclusion. Oxford University Press, 2013.

3VISA COMPLIANCE, CANCELLATION AND REVIEW
Character Test
Under section 501 of the Migration Act states that a person is said to have failed the
character test on the grounds stipulated under section 501(6) (a) to (d) of the Migration Act
which are enumerated as below:
 Substantial criminal record;
 Association with persons who is suspected to be involved in criminal conduct;
 Conviction for immigration detention offenses;
 Significant risk of any future conduct of similar types;
 Any present or past general or criminal conduct;
Substantial Criminal record- A person is said to have substantial criminal record if such person
have been subjected to:
 Life imprisonment or death sentence;
 Imprisonment for 12 months or more;
 Total terms of imprisonments is two years or more;
 Acquittal of an offence on the grounds of insanity, unsoundness or have been subjected to
detention;
Any person who has a substantial criminal record shall not pass the character test
automatically irrespective of any justifying factors that was related to his/her offense5.
Past or present, general or criminal conduct- under section 501(6) (c) of the Migration Act, if
the present or past criminal or general conduct signifies the student does not have a good
5 Stanley, Elizabeth. "Expanding crimmigration: The detention and deportation of New Zealanders from Australia."
Australian & New Zealand Journal of Criminology (2017): 0004865817730858.

4VISA COMPLIANCE, CANCELLATION AND REVIEW
character, the person fails the character test6. However, while determining whether the person is
of good character, the Minister shall consider the facts and circumstances of the relevant case
which includes any evidences of ‘recent good behavior of the applicant’ thus, complying with
the Direction No.55.
Significant risks of future conduct- A person does not succeed the character test if there is a
considerable risk that the person while residing in Australia, would be involved in illegal
conduct, molest, harass, or intimidate another person7. Such person may pose danger to the
community by engaging into harmful activities that might be threatening to the Australian
community or any particular part of the community.
Association with persons engaged in criminal conduct- a person does not pass the character test
is he/she is involved with a criminal person or a person who the Minister suspects to be engaged
in criminal conduct.
Conviction for immigration detention offences- a person shall fail to satisfy the Minister that he
passed a character test if the person is convicted of any offense while he was under immigration
detention, after he escaped from immigration detention, or before he was detained as is stipulated
under section 501 of the Act.
Addressing the Notice of Intention to Consider Cancellation (NOICC)
After the NOICC is served it is mandatory that a response is provided along with
submissions and evidence, thus, justifying why the visa should not be cancelled. Such response
should be provided within 28 days from the date the NOICC is served.
6Joppke, Christian. "Through the European looking glass: citizenship tests in the USA, Australia, and Canada."
Citizenship studies 17.1 (2013): 1-15.
7 Phillips, Janet, and Harriet Spinks. "Immigration detention in Australia." Parliamentary Library 20 (2013).

5VISA COMPLIANCE, CANCELLATION AND REVIEW
On the facts here, John has been involved in criminal activities in the past years. In 2014,
he was charged with theft of a motor vehicle, exhibition of drunken behavior and driving
carelessly and he was released with a $2000 good behavior without any conviction. In 2015, he
had been convicted for 2 months imprisonment with compensation of $2500 for driving without
a license and carelessly and assaults. He further failed to render necessary assistance in an
accident scene. Further, in 2017, he had been convicted for 3 months imprisonment with
compensation of $3000 for committing burglary with a Samurai sword, a lethal weapon.
The Minister or any delegate shall consider these criminal conducts as present and past or
general criminal conduct, which may result in automatic cancellation of the visa8. However, as
discussed above, while determining whether the applicant is of a bad character, the Direction
No.55 mandates the minister or a delegate to consider all the facts and circumstances relevant to
this case9. The Minister or the delegate is required to consider all evidences including evidence
of ‘recent good behavior’ of the applicant. The decision makers should consider the following
factors:
 nature, frequency, severity and collective impact of the offence or offences;
 demeanor of the person since the commission of the offence which includes
 any conduct that signifies character reform;
 time period since the person was last involved in criminal conduct;
 any evidence of ongoing engagement with criminals;
 any traces of commission of similar offence;
 any traces of contempt of law;
8 Lint, Willem De, Lorraine Mazerolle, and Rick T. Sarre. "Book Review, Leanne Weber, Policing Non-Citizens."
(2015).
9 McIntyre, Deborah, et al. "Experiences of adults with high-care needs and their family members with housing and
support pathways in Australia." Disability and rehabilitation 39.18 (2017): 1829-1839.

6VISA COMPLIANCE, CANCELLATION AND REVIEW
 the surrounding circumstances that may justify the criminal conduct in which the
applicant was involved;
On the facts here, in his justification, John may state that he is regretful for his previous
conducts and wishes to reform, given the fact that he is going to become a father. He may further
state that he has been subject to medical treatment under a Psychiatrist who is of the opinion that
there is every possibility for John to reform and abstain from engaging into any form of criminal
conduct in the future.
Further, he may state that he is a successful employee in Toyota and is regarded as a highly
competent motor mechanic by his colleagues as well as by the employers. In fact, he received an
award for the mechanic of the year by Toyota recently. Furthermore, his parents are proud of his
employment success.
Under section 501(1), if an applicant is involved in any past or present conduct criminal
conduct, a person fails the character test. However, John may justify his conduct on the
following grounds:
 that he fell into bad company in the night club and became involved in the alleged
criminal conducts;
 that since the last criminal conduct and after his conviction, he has not been engaged in
any further criminal activities;
 that he had been subject to medical treatment under a psychiatrist and he opined that with
growing influences of his family and girlfriend and persistent treatment, he will be
rehabilitated;

7VISA COMPLIANCE, CANCELLATION AND REVIEW
 John himself regrets his previous conducts and promises not to repeat or become engaged
in any further criminal activity in the future;
As per Direction No.55, the decision-makers may consider the following factors while
assessing whether the past or present conduct implies that they do not have a fine personality:
 The person has been engaged in war crimes, terrorist activities or crime against humanity,
drug trafficking, extortion, fraud or have a past history of immigration law contravention;
 The person has deported or removed from Australia or another country;
 The person has been discharged in advance from armed forces;
John has not been engaged in any of the above circumstances, and his conduct were though
criminal in nature but it did not amount to any of the factors mentioned above.
In order to establish that John regrets his part conduct and wishes to reform, he must attach
the doctor’s certificate that there is a complete possibility that he would not commit any criminal
conduct in the future as evidence as well as evidence of his organizational conduct10. Since
failing character test does not automatically cancel or refuses the visa, the decision –maker shall
have regards to certain primary considerations stipulated under Direction No. 55 that are follows:
 Best interests of minor children in Australia;
 The applicant’s present family in Australia provided they are Australian citizens;
 Australian Business interests;
 The economic, health and safety impediments the applicant will face if removed from
country;
10 Oldfield, Yvonne. "Australia's guestworkers? A discussion of the rights of New Zealand citizens to enter, reside
and work in Australia." (2014).

8VISA COMPLIANCE, CANCELLATION AND REVIEW
Therefore, John may apply state in his response that his girlfriend is expecting his child and it
is for the welfare of the unborn child that his visa is not cancelled. Further, his girlfriend Hannah
is part of his immediate family and has no economic stability to raise the child by herself as she
is a student and John has a financial stability to support her and their unborn child. His
immediate family also includes his parents who are old and have significant health problems as
serious as Parkinson’s disease and dementia. Since the NOICC is served to cancel the visa, the
decision-makers must consider that John would face economic impediments relating to standard
of living11. Furthermore, since John is regarded as the best technician of the Toyota Company, it
is in the best interest of the Australian company that John is not deported as it might affect the
production of the company12. These grounds establish the strength, nature and duration of John’s
ties to the country.
However, it is also a fact that the Minister is not obligated to comply with the Direction while
making personal decision with respect to the cancellation or refusal of visa on the ‘character
grounds’ under section 501 of the Migration Act 1988.
Consequences of cancellation of visa on character grounds
If the Minister for Immigration and Citizenship cancels the visa on the ground of
character test, John shall face serious consequences like placement in immigration detention for
long periods. He may be separated from his family and friends or may be removed from the
country.
However, John may apply to the Administrative Appeals Tribunal (AAT) within 9 days
from the decision made by the delegate, for reviewing the merits of the decision or challenge the
11 Hoang, Khanh, and Sudrishti Reich. "Managing crime through migration law in Australia and the United States: a
comparative analysis." Comparative Migration Studies 5.1 (2017): 12.
12 Donald, Adam. "Immigration points-based systems compared." BBC News (2015).

9VISA COMPLIANCE, CANCELLATION AND REVIEW
legality of the decisions through the courts. However, only a Delegate’s decision may be
appealed before the AAT13. The AAT shall review the original decision and set aside such order
under section 501 of the Act. John may apply for review of the decision made by the Minister
and the delegate before the Federal Court or High Court of Australia where the court may set
aside the original decision based on jurisdictional error.
13 McGrath, Jane. "A path of devotion: Migration law and the art of specialising." Bulletin (Law Society of South
Australia) 39.1 (2017): 8.

10VISA COMPLIANCE, CANCELLATION AND REVIEW
Reference list
Aas, Katja Franko, and Mary Bosworth, eds. The borders of punishment: Migration, citizenship,
and social exclusion. Oxford University Press, 2013.
Bucerius, Sandra M., and Michael H. Tonry, eds. The Oxford handbook of ethnicity, crime, and
immigration. Oxford Handbooks, 2014.
Donald, Adam. "Immigration points-based systems compared." BBC News (2015).
Hoang, Khanh, and Sudrishti Reich. "Managing crime through migration law in Australia and
the United States: a comparative analysis." Comparative Migration Studies 5.1 (2017): 12.
Hollifield, James, Philip Martin, and Pia Orrenius. Controlling immigration: A global
perspective. Stanford University Press, 2014.
http://www.ombudsman.gov.au/__data/assets/pdf_file/0027/42597/Own-motion-report-into-the-
Administration-of-Section-of-the-Migration-Act-1958-final.pdf
https://www.border.gov.au/Trav/Visa-1/444-
Joppke, Christian. "Through the European looking glass: citizenship tests in the USA, Australia,
and Canada." Citizenship studies 17.1 (2013): 1-15.
Lint, Willem De, Lorraine Mazerolle, and Rick T. Sarre. "Book Review, Leanne Weber, Policing
Non-Citizens." (2015).
McGrath, Jane. "A path of devotion: Migration law and the art of specialising." Bulletin (Law
Society of South Australia) 39.1 (2017): 8.

11VISA COMPLIANCE, CANCELLATION AND REVIEW
McIntyre, Deborah, et al. "Experiences of adults with high-care needs and their family members
with housing and support pathways in Australia." Disability and rehabilitation 39.18 (2017):
1829-1839.
Migration Act 1958 (Cth)
Oldfield, Yvonne. "Australia's guestworkers? A discussion of the rights of New Zealand citizens
to enter, reside and work in Australia." (2014).
Phillips, Janet, and Harriet Spinks. "Immigration detention in Australia." Parliamentary Library
20 (2013).
Stanley, Elizabeth. "Expanding crimmigration: The detention and deportation of New Zealanders
from Australia." Australian & New Zealand Journal of Criminology (2017): 0004865817730858.