BLO5607 Visa Compliance: Character Test and Visa Cancellation

This report analyzes visa compliance in Australia, specifically focusing on the cancellation of visas under section 501(2) of the Migration Act 1958. The report presents a case study involving John, a New Zealand citizen with a history of criminal activities, and his potential visa cancellation due to failing the character test. It details the legal framework surrounding visa refusal and cancellation, including the role of the Minister, the character test criteria (substantial criminal record, association with criminal conduct, risk of future conduct), and the considerations DIAC must make before canceling a visa. The report further explores the review mechanisms available to visa holders, including the Administrative Appeals Tribunal, Federal Court, and High Court of Australia. The report also discusses ministerial powers and the grounds for challenging visa cancellation decisions, offering a comprehensive overview of the legal processes and factors involved in visa compliance within the Australian context.

Running head: BLO5607 VISA COMPLIANCE
BLO5607 Visa Compliance
Name of the Student
Name of the University
Author Note

1BLO5607 VISA COMPLIANCE
Cancellation of visa under section 501(2) of the Migration Act
As per the fact of the case John is a citizen of New Zealand and has been granted a Class
TY Special Category (Temporary) sub class 444 visa. He is staying in Australia for the last 10
years. Though he is quite successful in his professional career he has some bad involvement with
various criminal activities like drunken behavior, theft of a motor vehicle and driving without a
license which make pleaded guilty to all his charges and finned with $2,000 for good behavior
Bond. Later he again found to drive without license, driving carelessly, assault and therefore he
was imprisoned for 2 months and wholly suspended for 12 months and has to pay $2,500 as
compensation. In 2017 he was found with burglary with a lethal weapon Samurai sword and
therefore again he was imprisoned for 3 months and Court has ordered for $3,000 as
compensation1.
Now his parents are worried about their son and they are residing in Australia on Class
TY Special Category (Temporary) sub class 444 visas. However recently it has been found that
his girlfriend Hannah who is staying in Australia with Class TU Student Temporary sub class
500 visa is 7 months pregnant. After he get to know that he will be a father he has been treated
under a doctor and a psychiatrist and they will continued the treatment and stated that good
influence from his family will help John to be rehabilitated. Recently he received a letter from
the migration department which contain a notice of intention to consider cancellation of his visa
on character Grounds under section 501(2) of the migration Act 19582.
1 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.
2 Hoang, Khanh. "Bad character: Visa cancellation on the basis of involvement in criminal conduct." Legaldate 27.2
(2015): 7.

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Under section 501 of the migration Act 1958 the visa may be refused or cancelled if it is
not passed the character test according to the minister of immigration and citizenship or the
Minister delegate then they has right to cancel a Visa on the character ground. The Minister can
cancel a Visa on the character ground where the person reasonably suspected that they do not
pass the character test and if they failed to satisfy the Minister to pass the character test then they
have the power for cancelling of visa which should duty of the Minister or by the minister’s
delegate3.
The section 501(3) provides another power to cancel the visa on the character ground
where it should be used by the Minister personally. If the Minister cancels the visa under the
section 503 of the migration Act 1958 the person should be suspected that he has failed to pass
the character test and it will be satisfied the Minister that the cancellation is occur in the national
interest.
The character test has been legislated under section 501(6) where the suspected person
may fail the character test if they4:
 related with a substantial criminal record ever been convicted or found escaped from
immigration detention5
 must have committed with criminal offences which is in immigration detention
 should have been a member of or had any past Association with any criminal
organization which involved in criminal conduct6
3 McGrath, Jane. "A path of devotion: Migration law and the art of specialising." Bulletin (Law Society of South
Australia) 39.1 (2017): 8
4 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.
5 Hoang, Khanh. "Bad character: Visa cancellation on the basis of involvement in criminal conduct." Legaldate 27.2
(2015): 7.
6 Kinslor, Joanne, and James English. "Decision-making in the national interest?." AIAL Forum. No. 79. Australian
Institute of Administrative Law, 2015.

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 The person should be found or suspected for the involvement with people smuggling,
people trafficking, genocide, war crimes or any crimes against humanity.
 The person have found related with any sexually offences where a child is involved
 the person should be subjected of any adverse assessment by ASIO
 The person should be noticed with the issues which should be reason for being a risk to
the Australian community.
The visa can be refused or cancelled under section 501 of the migration Act 1958. It defines
and describes through a two stages of the decision making process under this act which is also
known as threshold test for a refusal or cancellation. If it has been found that under section 501
(1) (2) (3) has been satisfied the minister of the delegate for the refusal or cancellation therefore
the second stage of decision making process has been processed under the section 501 of the
migration act. But it is important that the minister of the delegate should have the right to take
decision whether the visa should we exercise to refuse or cancel. Under section 499 of the
migration act the Minister give direct Direction for the decision making process under section
501 where ministerial decision should be commenced by the offices of the department of
immigration and citizenship where they will work on the visa cancellation and refusal decision
under the section of 501(1) and (2) of the migration act7.
The character test has detained under the section 501 of the migration act mainly depend on
four categories which includes substantial criminal record, Association with criminal conduct, lot
of good character on account of past and present criminal or general conduct and significant risk
of future contact grounds8.
7 McGrath, Jane. "A path of devotion: Migration law and the art of specialising." Bulletin (Law Society of South
Australia) 39.1 (2017): 8
8 Hoang, Khanh. "Bad character: Visa cancellation on the basis of involvement in criminal conduct." Legaldate 27.2
(2015): 7.

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Most of the time the character test has been failed due to having a substantial criminal
record of the person under the section 501(7) of the migration act9. The substantial criminal
record has been defined the visa holder who has a substantial criminal past record if he is
involved in the punishment of sentenced to death, ever sentenced to the punishment of life
imprisonment or ever have sentence to a term of imprisonment for 12 months or more. If the
person has involved with an offence due to the mental illness or if the court is not found that the
person is not fit and the court has made a finding of guilty according to the evidence which has
been detained in a facility or institution10.
The association with criminal conduct has defined where the person has failed to pass the
character test for any involvement with other persons or any group which can involved with
criminal contact and suspected by the Minister11.
In the third category lot of good character on account of past or present criminal or
general conduct the general conduct has defined where the persons past or present involvement
where they not pass the character test and DIAC has considered where the person has been found
with the involvement in such exercise which define content or disregard against the law or
human rights and has found mislead immigration officials therefore DSE can consider the recent
good conduct. In the criminal conduct where the person has failed in the character test where
the delegate of the Minister should take the involvement of nature severity frequency and time
9 Kinslor, Joanne, and James English. "Decision-making in the national interest?." AIAL Forum. No. 79. Australian
Institute of Administrative Law, 2015.
10 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.
11 McGrath, Jane. "A path of devotion: Migration law and the art of specialising." Bulletin (Law Society of South
Australia) 39.1 (2017): 8

5BLO5607 VISA COMPLIANCE
elapsed from the period when the offences has been committed and that person also recorded for
the offence is which has been committed and it also includes any mitigating circumstances12.
In the fourth category the significant risk of future conduct grounds the person may fail
the character test if a significant risk has been found in Australia where that person has been
involved in any criminal conduct which includes harass, molest intermediate or stalk another
person or found to be a risk to the Australian community or incite discord or represent a danger
to the part of the community or the Australian community13.
However when the person has not passed the character days that does not cancel the visa
automatically by DIAC. DIAC must look for a number of factors before it make the decision
whether or not to cancel the visa. The ministerial direction number 21 has been determined such
consideration which has been divided in three parts.
 The primary consideration for it must make the decision before cancel officer that
includes the protection of the Australian community, the expectation of the Australian
community for the best interest if any child who has been aged under18 have
affected14.
 The Other consideration which includes the facts for that person is married or any de
facto relationship with another Australian citizen or has permanent residency or any
previous hardship which has been caused or any immediate family members. It also
includes the extent of disruption to the person’s family business or any other related
matters in Australia the composition of that person’s family which may in Australia
12 Hoang, Khanh. "Bad character: Visa cancellation on the basis of involvement in criminal conduct." Legaldate 27.2
(2015): 7.
13 Kinslor, Joanne, and James English. "Decision-making in the national interest?." AIAL Forum. No. 79. Australian
Institute of Administrative Law, 2015.
14 McGrath, Jane. "A path of devotion: Migration law and the art of specialising." Bulletin (Law Society of South
Australia) 39.1 (2017): 8

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or any other country. If the person has using any legal matter or any liability or that
person has been previously advised by DIAC which has been brought him or her in
the section of 501 cancellation revision or there is any evidence of rehabilitation and
good conducts15.
 The third one is other international obligations which includes the obligations for
that person who is facing any risk of violation with the right to life and the right to
freedom in the country of his origin or any issues of protection under the convention
relating to the Status of Refugees 1951 where they have their visa cancelled and
should be returned to the country of origin16.
However the DIAC has been provided such right where before the cancel of the visa of
the person on the basis of character ground he has right to comply with the evidence under the
code of procedure where they invite that person to provide such evidence or any further
information before the decision has been made. In the decision making process the Minister is
the decision maker. Therefore he must require contacting such procedure with the rules of
natural justice or with the code of procedure17.
If DIAC has been take decision to cancel that person visa then the person will become an
unlawful processed under the immigration detention if the visa has been cancelled under the five
hundred and one of the migration act then that person has been permanently banned from
applying for another visa file in Australia18. It also cancelled other visas which have been that
15 Hoang, Khanh. "Bad character: Visa cancellation on the basis of involvement in criminal conduct." Legaldate 27.2
(2015): 7.
16 Kinslor, Joanne, and James English. "Decision-making in the national interest?." AIAL Forum. No. 79. Australian
Institute of Administrative Law, 2015.
17 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.
18 McGrath, Jane. "A path of devotion: Migration law and the art of specialising." Bulletin (Law Society of South
Australia) 39.1 (2017): 8

7BLO5607 VISA COMPLIANCE
person is holding and it will be permanent exclusion from Australia. The visa holder may be
banned from Australia but it can be reviewed under the Administrative Appeals Tribunal. The
minister has no right to personally review the decision by the Administrative Appeals Tribunal.
The 501 cancellation of visa has also reviewed by the Federal Court or the High Court of
Australia. If it has been found that the minister has been made an error in the law and providing
on the decision of the cancellation of the visa then it can be reviewed19.
If the visa was cancelled on the character Grounds therefore John can apply for the
review of the decision on the cancellation of the visa under section 501(2) of the migration act.
The cancellation of visa decision making process can be review in three ways.
 Access to the merits review where the Administrative Appeals Tribunal can review the
decisions on the basis of merit and it can be able to challenge the legality of the decisions
through the court proceeding. If that visa holder has been apply for the merit reviews by
Administrative Appeals Tribunal on the basis of the decision which has been made by the
Minister own himself or by a delegate of the Minister. The decision has been refused to
grant or cancel the visa process under the merit reviews by Administrative Appeals
Tribunal if that decision has been made by a delicate of the Minister20.
 Decision making process of the visa cancel also refused according to the Judicial review
where the decision has been made by DIAC officer or by the Minister personally. The
Federal Court or High Court of Australia if we found that the visa cancellation Decision
19Hoang, Khanh. "Bad character: Visa cancellation on the basis of involvement in criminal conduct." Legaldate 27.2
(2015): 7.
20 Hoang, Khanh. "Bad character: Visa cancellation on the basis of involvement in criminal conduct." Legaldate 27.2
(2015): 7.

8BLO5607 VISA COMPLIANCE
Process has been affected by the jurisdictional error then that decision making can be
reconsidered and it can be cancelled the decision21.
 The minister has personal powers to refuse or cancel visas under the section 501, 501A
and 501B of the migration act on the basis of minister’s own discretionary powers where
he have rights to refuse or cancel the visa process on the basis of character ground. The
visa holder Can only has right to challenge the legality of such decisions through the
Judicial review if minister has involved in the cancellation of that visa22.
21 Kinslor, Joanne, and James English. "Decision-making in the national interest?." AIAL Forum. No. 79. Australian
Institute of Administrative Law, 2015.
22 McGrath, Jane. "A path of devotion: Migration law and the art of specialising." Bulletin (Law Society of South
Australia) 39.1 (2017): 8

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Hoang, Khanh. "Bad character: Visa cancellation on the basis of involvement in criminal
conduct." Legaldate 27.2 (2015): 7.
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No. 79. Australian Institute of Administrative Law, 2015.
McGrath, Jane. "A path of devotion: Migration law and the art of specialising." Bulletin (Law
Society of South Australia) 39.1 (2017): 8.