Visa cancellations and refusals can occur under many different circumstances and for many reasons. Amongst one of the most common reasons is the exercise of section 501 of the Migration Act 1958 (Cth), which allows a visa to be canceled or refused on character grounds, typically relating to criminal offences, though not exclusively.
Ministerial Direction 90
Section 501 is far reaching in its scope, and clarification on its operation is provided by Ministerial Direction No. 90 which provides binding guidance to departmental decision makers in determining whether or not to cancel a visa, refuse a visa or to revoke a cancellation which has already occurred.
Background of Sections 501 and 501CA
At its most basic, section 501 allows for a visa to be canceled or a visa application to be refused where a visa holder does not pass a proscribed “character test” or is reasonably suspected to not satisfy it. The onus is on the visa holder or visa applicant to prove that they are of good character when questioned.
In some instances, visa cancellation is mandated under section 501 for persons with particular criminal convictions. Despite this, even a mandatory cancellation may be revoked by the Department pursuant to section 501CA. Grounds for revocation of mandatory cancellations are narrow and vague, requiring either that a former visa holder show that they pass the character test, or that there is “another reason” why the original cancellation should be revoked.
The application of the “character test” forms the basis of a cancellation under section 501. The test itself is contained in section 501(6).
In summary, common grounds for failing the character test include:
- Having been sentenced to cumulative terms of imprisonment exceeding 12 months in total duration.
- Escaping from, or committing an offence in, immigration detention.
- Being reasonably suspected of people smuggling or trafficking.
- Being reasonably suspected of being associated with a group or person engaged in criminal conduct.
- Where a person’s past and present criminal or general conduct indicates that they are not of good character.
- Where a person is likely to engage in criminal or disruptive conduct if permitted to enter Australia.
- They have been convicted of a child sex offence.
- They may vilify a segment of the Australian community.
From the above, the character test remains broad in many respects, allowing for refusal on a range of both subjective and objective grounds. This broadness offers flexibility to the Department of Home Affairs in determining when to cancel visas under section 501.
In many instances, section 501 stipulates that a visa may be canceled where certain other conditions are met. This, in effect, transforms this power into a discretion, whereby the Department may opt not to effect cancellation or application refusal. In other situations, however, section 501 requires that visas be canceled where:
- A person has a “Substantial Criminal Record;” or
- A person is guilty of a sexual offence against a child.
Note that a “substantial criminal record” means one of either:
- Having been sentenced to cumulative terms of imprisonment exceeding 12 months in total duration; or
- Being sentenced to death or life in prison; or
- Being detained after being acquitted for reasons of mental unsoundness or being found to have committed an offence after being found not fit to plead.
Ministerial Direction No 90
To assist the Department of Home Affairs in exercising its discretionary powers under section 501, a binding ministerial direction has been executed to provide further specificity to the operation of the relevant provisions. As at the time of writing, the applicable direction was that which was enacted by the Hon. Alan Hawke on 8 March 2021.
Major matters addressed in Ministerial Direction No. 90 include when a discretion should or should not be exercised and how the character test ought to be applied.
Exercising the Ministerial Discretion under Ministerial Direction 90
Where a discretion is offered to the Department by Section 501, directives proscribe matters which may be considered, as well as commentary on how the aforesaid matters may, or ought to be assessed by a decision maker. These factors are divided into “ primary” and “other” considerations, with so-called “primary considerations” generally, but not necessarily, being ascribed greater relevance.
“Primary considerations” include:
- Protection of the Australian community
- Conduct constituting family violence
- Best interests of minor children in Australia
- Expectations of the Australian community
“Other considerations” include:
- International non-refoulement obligations
- Impediments if the person is removed from Australia
- Impact of the person’s criminal conduct on victims
- Links to the Australian community
The aforementioned factors are to be considered and weighed against one another when considering the appropriate course of action in a given case.
Protection of the Australian Community
Decision makers are instructed to assess the Australian community’s tolerance of future risks of harm as proportionate to the seriousness of said potential harm. As such, the nature of the conduct a visa holder or applicant is at risk of engaging in becomes highly relevant to the character test.
Much of the directions focus on the risk of recidivism by a convicted criminal. The risk of reoffending will be carefully assessed by the decision maker, as will any evidence of successful rehabilitation of the visa holder or visa applicant.
In relation to visa refusals, the risk to the community may be assessed against the duration or nature of the visa sought, particularly if the nature of said visa serves to increase the likelihood of harm being done by the applicant. Compassionate justifications for grant may also be relevant when considering grant of short stay visas.
The Australian Government takes a particularly stringent stance against perpetrators of domestic violence. This will include both where a visa holder or applicant has been convicted of a family violence offence and where there is an indication of family violence from an “authoritative source.” Where no conviction has been recorded, the department must offer the individual some means of rebuttal, as the directives necesitate that “procedural fairness” be afforded in such instances.
Reoffending is considered particularly egregious under the applicable directives. Whilst a lack of reoffending is not to count in a migrant’s favoure, a repeat offence occurring after a warning has been issued by the Department is to be deemed particularly prejudicial in relation to a character assessment.
Best Interests of a Child
Directives make clear that only the interests of an underage child need be considered under this limb, with the interests of each affected child being considered independent of one another. This limb considers both any benefits and any detriment associated with the migrant’s presence in Australia vis a vis any affected children.
In line with the Australian Government policy, family violence and sexual abuse are to be given specific consideration when assessing the best interests of a child.
Expectations of the Australian Community
The directions require an assessment of the expectations of the Australian community with respect to whether a migrant ought to be deprived a visa on the basis of their past conduct. These “community expectations” are determined with reference to the ministerial direction, irrespective of whether these listed activities attract criminal liability either in Australia or abroad.
Conduct considered in the directives to be contrary to Australian community expectations include:
- Family violence
- Involvement in effecting a forced marriage
- Serious crimes against women, children or other vulnerable people
- Crimes against government officials due to their position or role
- Exploitation of workers
The Department is not to make independent assessments of what community expectations are, and are instead required to defer to the directions entirely.
Australia may owe a non-refoulement obligation to a migrant who is at risk of harm in their country of origin. This obligation under the 1951 Refugee Convention must be taken into account when considering exercise of Section 501.
The existence of a non-refoulement obligation will not, in of itself, mandate sparing a migrant from visa cancellation or refusal. This is because the exercise of Section 501 will not necessarily result in the migrant’s return to their country of origin. Such migrants may instead be sent to a safe third country or simply be held in migration detention. The non-refoulement obligation must instead be weighted against the factors in favour of the cancellation or refusal. A more heinous cause for cancellation will theoretically offset consideration of non-refoulement obligations.
Directives finally make clear that whilst this factor is generally only applicable to refugee visa matters, it is open to any migrant to posit a non-refoulement based claim when responding to an actual or potential Section 501 decision. Irrespective of the visa held or applied for, the Department of Home Affairs is obligated to give some consideration to this factor.
Impediments of Removal from Australia
Under the directions, possible relevant impediments of removal may include:
- The migrant’s age and health
- Any linguistic or cultural barriers which the migrant is likely to encounter once returned to their original home country
- Access, or lack thereto, to social, medical and economic support in their country of origin
Under the directions, possible relevant impediments of removal may include:
The main question under this consideration is whether the above factors serve as impediments to the migrant’s ability to establish or reestablish him or herself in their country of origin. When considering their capacity to maintain living standards, the direction approaches this question within the context of general living standards amongst the populace in said country.
Where criminal conduct of a migrant forms a ground for exercise of section 501, the directives require consideration of the impact of this offending upon the migrant’s victims and the victims’ families.
Links to the Australian Community
The most extensively covered of all factors involve assessment of a migrant’s ties to Australia. The rationale of this ground is to necessitate a holistic assessment of the benefits offered by the migrant to the Australian community and their level of integration therein. Relevant factors under the direction which must be considered includes:
- Impact on any immediate family member of the migrant who are citizens or permanent residents of Australia
- How long the migrant has been in Australia
- Whether the migrant arrived in Australia as a child
- If the migrant has a criminal history, how long after their arrival in Australia did the offending occur
- How long the migrant has spent making positive contributions to the community
- The familial and friendship links between the migrant and any Australian citizen or permanent resident
- Impact of the migrant’s departure on an Australian business interest, though generally only where it would compromise a major project or delivery of an important service in Australia
Applying the Character Test under Ministerial Direction 90
Each consideration contained in subsection 501(6) is also provided with additional guidance within the ministerial direction.
In many instances, the direction essentially reiterates the contents of the character test or provides minimal commentary thereon. Where significant additional commentary is provided, directives for said paragraphs have been summarised below.
Membership and Association
Suspected current or former association or membership with a group or person involved in criminal conduct may result in failure of the character test. The directions make clear that such suspicion must be based on an objective assessment and be of a kind which a reasonable person could hold.
With respect to questions of membership, actual current or former membership is required. Mere sympathisers or supporters will not fall under this limb, even if involved in the criminal activity of said group or organisation. An “association” will be judged with reference to its degree, frequency, duration and general nature, and must have some “negative bearing” on the person’s character, and will generally include some level of sympathy, support or involvement with the criminal activities of the relevant group.
Past and Present General Conduct
In addition to assessing a person’s criminal conduct, a more holistic assessment can be made by the Department by assessing a person’s character with reference to their general conduct. This may include all past conduct, whether criminal or otherwise. The primary question for the Department is whether the person possesses “enduring moral qualities.”
Directions regarding assessment of past general conduct largely provide the following as relevant considerations which may count against a visa holder or applicant:
- Various dishonesty offences, such as fraud and extortion
- Significant drug offences
- Human rights offences
- Offences involving political violence, such as terrorism
- Dishonourable or premature military discharge
- Past history of sever breaches of immigration laws, whether in Australia or abroad
Directions also allow the Department to consider criminal charges, allowing unresolved criminal matters to adversely impact the assessment of a person’s character.
Vilification, Discord, and Disruptive or Violent Activities
Directives prescribe a range of factors that may be considered when assessing a visa holder or visa applicant under section 501(6)(d)(iii), (iv) or (v).
One recurrent theme involves persons who believe in, have a history of, or promote and incite violence or unlawful conduct, particularly as a means of political expression. Those liable to vilify a segment of the Australian community are likewise caught by this provision.
Less clear factors include persons who have engaged or threaten to engage in conduct “incompatible with the smooth operation of a multicultural society.” The clarification given for this direction describes advocacy for values which are not generally accepted in Australia or otherwise result in “discord” within a community or between segments of the community. How values are deemed to be beyond what is “generally accepted” is not elaborated on.
Directions instruct that decision makers take care to balance the above provisions with Australia’s tradition of free expression. The primary concern when applying these provisions is the extent to which the visa holder or applicant’s actions or opinions are likely to “cause discord or unrest,” rather than simply being assessed on the likely popularity of said views in Australia. Unpopular opinions are not, in of themselves, enough to fail the character test.
Child Sex Offences
All Australian or foreign convictions relating to a sexually based offence involving a child will result in failure of the character test. This is irrespective of whether the person was discharged without conviction and is not affected by the severity or leniency of the penalty or order made in relation to the offence.
Sexually based offences involving a child may include:
- Child sexual abuse
- Indecent dealings with a child
- Child pornography offences
- Internet grooming
- Offences relating to a carriage service
Note that the above list is not exhaustive.