Mandatory visa cancellation
Overview
Section 501(3A) of the Migration Act 1958 (Cth) requires the Minister to cancel a visa — with no discretion — where the holder is serving a sentence of imprisonment on a full-time basis in a custodial institution, or is in the immigration detention of, and has either (a) a substantial criminal record based on a sentence of 12 months or more imprisonment, or (b) been convicted of a sexually based offence involving a child. Revocation of the mandatory cancellation may be sought under s 501CA.
Mandatory cancellation is distinct from the discretionary character powers under s 501(1) and (2), which require a weighing exercise. Under s 501(3A), the Minister has no choice — if the triggering criteria are met, the visa is cancelled automatically by operation of the section.
The mandatory cancellation regime has been a significant source of litigation in the ART and the Federal Court, particularly on the questions of whether a person has a "substantial criminal record" and what constitutes a "sentence of imprisonment" for this purpose.
Legal basis
- Section 501(3A) — the mandatory cancellation trigger; applies where the person is serving full-time imprisonment and has a substantial criminal record or has been convicted of a sexually based offence involving a child
- Section 501(7) — defines "substantial criminal record" for the purposes of s 501
- Section 501CA — the Minister may revoke the mandatory cancellation if the person passes the character test or if there is another reason; the person must be invited to make representations
- Section 501(3) — mandatory refusal of a visa to a non-citizen who has a substantial criminal record
- Direction No. 99 — governs revocation decisions under s 501CA, setting out primary and other considerations
How it works
Triggering conditions — s 501(3A)
Mandatory cancellation is triggered when both of the following conditions are met:
- The person is serving a sentence of imprisonment on a full-time basis in a custodial institution, or is in the immigration detention of Australia; and
- The person either:
- has a substantial criminal record as defined in s 501(7) — that is, they have been sentenced to death or to imprisonment for life, or to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is 2 years or more; or
- has been convicted of a sexually based offence involving a child
The cancellation process
When the Department identifies that a person meets the triggering criteria, the visa is cancelled. The person is given notice of the cancellation and invited to make representations as to whether the cancellation should be revoked under s 501CA.
Revocation under s 501CA
Following mandatory cancellation, the person may request revocation. The Minister may revoke the cancellation only if satisfied that:
- the person passes the character test; or
- there is another reason why the cancellation should be revoked
The "another reason" ground is interpreted broadly and requires consideration of all relevant circumstances, including those set out in Direction No. 99: protection of the Australian community, expectations of the Australian community, best interests of minor children in Australia, and strength, nature and duration of ties to Australia.
Effect of cancellation pending revocation
Once mandatorily cancelled, the former visa holder's status is that of an unlawful non-citizen. If the person is already in Australia, they may be detained under the immigration detention provisions of the Act and are subject to removal.
Review
A decision by the Minister (or a delegate) on a revocation request under s 501CA is reviewable by the ART (Migration and Refugee Division) if made by a delegate. A personal Ministerial decision is not merits reviewable.