The character test — section 501
Overview
Section 501 of the Migration Act 1958 (Cth) empowers the Minister for Home Affairs (or a delegate) to refuse a visa application or cancel a visa if the applicant or holder does not pass the character test. A person fails the character test if they meet any of the grounds set out in s 501(6), including having a substantial criminal record, being associated with a criminal organisation, or having been convicted of a sexually based offence involving a child.
The character test is one of the most significant visa refusal and cancellation powers in Australian immigration law. It applies both to onshore applicants and to persons overseas seeking entry, and it applies to any visa — including permanent visas already granted.
A finding that a person fails the character test does not automatically result in refusal or cancellation. Section 501 preserves a discretion in most circumstances; the decision-maker must consider whether to exercise that discretion against the person, applying the factors set out in Direction No. 99.
Where the mandatory cancellation provisions in s 501(3A) apply, no discretion exists — the Minister must cancel the visa.
Legal basis
The character test provisions are in Part 9 of the Migration Act 1958:
- Section 501 — the primary character test and discretionary refusal/cancellation powers
- Section 501(3A) — mandatory cancellation where the person has been sentenced to 12 months or more imprisonment, or convicted of a sexually based offence involving a child
- Section 501A — additional Ministerial power to set aside a decision and substitute a refusal or cancellation
- Section 501B — power of the Minister not administering the Migration Act to refuse or cancel on character grounds
- Section 501CA — process for seeking revocation of a mandatory cancellation decision
The exercise of the discretion under s 501 is governed by Direction No. 99 (Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA), which sets out the primary and other considerations decision-makers must weigh.
How it works
Step 1 — Does the person fail the character test?
A person fails the character test under s 501(6) if any of the following grounds apply:
- Substantial criminal record (s 501(7)): sentenced to death, life imprisonment, a term of imprisonment of 12 months or more, two or more terms totalling two years or more, or acquitted on grounds of unsoundness of mind where the court found the act was done
- Sexually based offence involving a child: convicted of such an offence, regardless of sentence length
- Association with a criminal group: having an association with a person or group involved in criminal conduct
- General character: the decision-maker reasonably suspects the person has been involved in criminal conduct, people smuggling, or human trafficking
- Internationally recognised crimes: involvement in genocide, war crimes, torture, or crimes against humanity
- Vilification or violence: the person has been or is likely to incite discord or represent a danger to the Australian community
Step 2 — Mandatory cancellation (s 501(3A))
If the person is in the immigration detention of, or is serving a sentence of imprisonment in, a prison — and they have a substantial criminal record on sentence of 12 months or more or a conviction for a sexually based offence involving a child — the Minister must cancel the visa. There is no discretion. The person may seek revocation under s 501CA.
Step 3 — Discretionary refusal or cancellation (s 501(1) and (2))
Where mandatory cancellation does not apply but the person fails the character test, the decision-maker has a discretion to refuse or cancel. They must consider the primary considerations in Direction No. 99 (including protection of the Australian community, expectations of the Australian community, and best interests of minor children) and balance all relevant factors.
Step 4 — Revocation of mandatory cancellation (s 501CA)
A person whose visa has been mandatorily cancelled under s 501(3A) may request the Minister to revoke the cancellation. The Minister may revoke if satisfied that the person passes the character test or if there is another reason why the cancellation should be revoked. Direction No. 99 governs the revocation decision.
Review
Decisions by delegates under s 501 are reviewable by the Administrative Review Tribunal (ART). Personal decisions by the Minister are not merits reviewable but may be challenged by judicial review in the Federal Court.