Visa cancellation on character grounds under section 501(2)

Visa cancellation on character grounds under section 501(2) – tips on how to avoid visa cancellation.

In MIBP v Stretton [2016] FCAFC 11, Griffiths J summarised 5 features of the Minister’s cancellation on character grounds under under s 501(2) as:

1. The power to cancel a visa is only enlivened if the Minister reasonably suspects that the visa holder does not pass the character test (as defined in s 501(6)) and the visa holder does not satisfy the Minister that he or she satisfies the character test. Relevantly, a person does not pass the character test if the person has been sentenced to a term of imprisonment of 12 months or more.
2. The Minister’s discretion, once enlivened, is substantially unfettered in the sense that there is no list of factors which the Minister must consider. However, this power is not without limitations. The Minister may not, for example, act arbitrarily or capriciously. The Minister is not required to take certain considerations into account having regard to the subject matter, scope or purpose of the Act. The Minister is required to consider the protection of the Australian community and any risk of harm posed by the continued presence of the visa holder in Australia.
3. The Minister’s discretion to cancel a visa under s 501(2) must be exercised reasonably (MIAC v Li (2013) 249 CLR 332) otherwise the decision to cancel may constitute vitiating or legal unreasonableness.
4. The Minister’s discretion under s 501(2) is, and is intended to be, broad. That is a relevant consideration in assessing whether a decision under s 501(2) is unreasonable in a legal sense.
5. The power to cancel a visa is substantive, not procedural, in nature.

Not passing the character will enliven the Minister’s discretion for visa cancellation on character grounds under s 501(2).

In exercising that discretion, the Minister must assess and have regard to any information or documents provided.

In assessing the information or documents the Minister must consider various factors that he considered weighed against and in favour of cancelling the visa.

Usually the Minister will consider the following factors:

1. The circumstances when the offence was committed
2. The police charge sheet
3. Nature of offending
4. Statements from family, friends, employer, work colleagues and others
5. Whether the offender shows any remorse and insight into the offending
6. Whether the offender has taken any preventive action against re-offending
7. The offender’s pleading at trial
8. Psychologist’s or competent person’s report, especially on recidivism
9. Letters of support from the community
10. Family ties in Australia and home country
11. Ties to Australia and home country
12. Situation in home country
13. Offending history up to the day of visa cancellation or review hearing
14. How long the offender has resided in Australia
15. Contributions made to the community
16. Whether employed or studied in Australia
17. Dependency of offender’s family on offender
18. Psychological or physical harm sustained by victim(s)
19. Whether deportation will cause offender’s family emotional, practical and financial hardship
20. Sentencing Judge’s remarks

Generally, the Minister will consider weigh in favour of cancellation were the nature and seriousness of the visa holder’s criminal offending, the risks to the Australian community and the expectations of the Australian community. The weigh against the cancellation include the best interests of children, the visa holder’s ties to Australia, the impact on the visa holder’s other Australian interests, the impediments or hardship the visa holder might face if required to leave Australia.

Criminal offending especially sexually based offences are viewed very seriously by the Australian community. The sentencing judge’s remarks on sentence, the length of custodial sentence, and the victim’s statement whether the visa holder’s conduct had a traumatic effect on them will be taken into consideration by the Minister.

In considering the risk to the Australian community, the Minister will consider the nature of the offending and whether the visa holder had committed further offences (recidivism). Other consideration include the impact on the victim, e.g. the offending has resulted in psychological and emotional harm; the risk of the visa holder re-offending; whether the visa holder has shown remorse and insight into his or her offending, whether the visa holder had breached any good behaviour orders; whether the visa holder had support from family and friends, and is gainfully employed.

Despite the above, the Minister may still cancel the visa due to the risk to the Australian community of permitting the visa holder to continue to reside in Australia outweighed the competing considerations.

You may challenge the Minister’s visa cancellation on character grounds on the basis that the decision was affected by jurisdictional error resulting from his unreasonable exercise of his Ministerial discretion.

Legal unreasonableness – relevant principles

In MIBP v Eden [2016] FCAFC 28, the Court addressed the relevant principles in relation to ‘legal unreasonableness’ as ground of judicial review at [55] – [65]:

1. The concept of legal unreasonableness concerns the lawful exercise of power. Legal reasonableness, or an absence of legal unreasonableness, is an essential element in the lawfulness of decision-making (MIAC v Li (2013) 249 CLR 332 at 350 [26])).
2. The Court’s task in determining whether a decision is vitiated for legal unreasonableness is strictly supervisory. It does not involve the Court reviewing the merits of the decision, or the Court substituting its own view as to how the decision should be exercise for that of the decision-maker. Nor does it involve the Court remaking the decision according to its own view of reasonableness.
3. The concept of legal unreasonableness involves (i) a conclusion after the identification of a recognised species of jurisdictional error in the decision making process, such as failing to have regard to a mandatory consideration, or having regard to an irrelevant consideration; (ii) involves an ‘outcome focused’ conclusion without any specific jurisdictional error being identified; (iii) it necessary to bear in mind that there is an area of ‘decisional freedom’ as reasonable minds might differ as to the correct decision or outcome, but any decision or outcome must be within the bounds of legal reasonableness, that is, must fall within the range of possible lawful outcomes of the exercise of the power’ (iv) whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power. The evaluation is fact dependant and to require careful attention to the evidence; (v) where reasons for the decision are available, the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reason can be identified; and (vi) there is no fixed formulae, categorisations or verbal descriptions. The Court often use descriptive expressions such as “ plainly unjust”, “arbitrary”, “capricious”, “irrational”, “lacking in evident or intelligible justification”, and “obviously disproportionate”.   

However, if you are holding a protection visa, the Minister may not order your visa cancellation on character grounds (click here to learn more).

Note that the Department can also cancel your temporary or permanent visa without giving you notice to you while you are outside Australia, click here to learn more about section 128 visa cancellation without notice while you are out of Australia.

If your visa is refused or cancelled because you do not pass the character test, you should refer to Direction No 90 on how to argue your case, click here to learn more about Direction No 90 or click here to more information on section 501 cancellation.

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) to help with your visa cancellation on character grounds.

This article is not intended to be or taken as migration legal advice. The author of this article disclaims any liability for any action or omission on the information provided or not provided in this article. You should always consult an immigration lawyer or a registered migration agent to form an informed opinion on your immigration matter.