PR & Visa Cancellation | Failing Character Test

PR & Visa Cancellation is permitted for failing the Character test

The Department of Immigration (Department of Home Affairs) often subject PR & Visa holder for cancellation if they failed the Character test. Unlawful non-citizen, that is, a person who is not an Australian citizen and does not hold a valid visa, may be detained in an immigration detention center (click here to learn more).

If your PR or visa is cancelled under section 501(3) of the Migration Act 1958 (click here to learn more) because you failed to satisfy the character test, for example, you have been sentenced by a Court to more than 12 months imprisonment, you may engage an immigration lawyer to have the cancellation revoked under section 501CA (click here to learn more). To learn how to make a section 501CA revocation of cancellation request, click here.

However, if the Minister or his delegate decided not to revoke the cancellation, you or your immigration lawyer may apply to the AAT (click here to learn more) to review the decision not to revoke your visa cancellation.

The AAT has the statutory power to reinstate your PR & Visa by setting aside or revoke the cancellation. If the AAT revoked the cancellation, your PR & Visa will be reinstated.

You should note that the Minister may not be able to cancel your protection visa or refuse your protection visa application on section 501 character test (click here to learn more).

Minister can set aside AAT’s decision to revoke visa cancellation

The Minister can use his personal discretion under section 501BA (click here to learn more) to set aside the AAT’s decision and to issue an order for your PR or Visa cancellation to proceed again.

The Department of Immigration or the Minister can, if they are not satisfied that you do not pass the character test because of the operation of section 501(6)(a) (click here to learn more) and on the basis of section 501(7)(c). This simply mean that if you have a substantial criminal record, you will not pass the character test. In addition, it is in the national interest to cancel your PR or Visa, click here to learn more.

Challenging Minister’s decision

If the Minister set aside the AAT’s decision to revoke the Department of Immigration’s or the Minister’s visa cancellation order, you can apply to the Court under section 501BA to review the Minister (click here to learn more).

However, your immigration lawyer will have to prove that the Minister has made a jurisdictional error or made an error in law when issuing the order for your PR & Visa cancellation.

In general, the Court’s authority is supervisory, that is, to make sure the Minister or the Department of Immigration officers or delegates exercise of power is lawful. In another word, the Minister and his delegates can only make a decision which he is, or they are authorised to make.

The Court is not permitted, according to a High Court case, to change the Minister’s or the Department of Immigration’s decision to cancel your PR & Visa even if the cancellation decision was wrong or not preferable: Plaintiff M64/2015 v MIBP [2015] HCA 50; 258 CLR 173 at [23] (click here to read the full case).

The Minister when issuing an order for your PR & Visa cancellation, he does not need to consider the length of time you have lived in Australia. What he take into consideration in determining what is in the best national interest is a matter for him (Mandafferi v MIMA [2002] FCAFC 220 at [89]; MIMIA v Huynh [2004] FCAFC 256; 139 FCR 505 at [74] (click here to read the case).

It is entirely up to the Minister to determine what factors are to be considered as relevant when he determine whether to cancel or refuse a visa is in the national interest and whether to exercise the discretion conferred to him under section 501A(2) (click here to learn more); Gbojueh v MIAC [2012] FCA 288; (2012) 202 FCR 417 (click here to read the case).

The Minister may consider your Australian citizen children and may accept that issuing an order for your PR & Visa cancellation and deporting you may not be in the best interests of your Australian children, but if the Minister consider that you are a risk to the Australian community he can cancel your visa regardless.

The national interest can override consideration like having Australian citizen children even though a child’s best interests are covered under the Convention on the Rights of the Child or CROC (click here to learn more).

Even if you have an Australian citizen child with serious medical condition or your children are under 18, the Minister is not required to take this into consideration when issuing an order for your PR & Visa cancellation. This is because the definition of a dependent child, according to reg. 1.03 of the Migration Regulations 1994, does not include the interests of dependent children to be considered as a primary consideration because the rule of natural justice is excluded by section 501BA(3).

In addition, the Minister does not have an obligation or duty to you to ask about your personal circumstances: MIBP v Maioha [2018] FCAFC 216 at [48] (click here to read the case).

Under section 501BA(3) the Minister is not required to provide you or your immigration lawyer with the opportunity to provide him with supporting document or submissions. He is not required to provide you with natural justice.

Under section 501BA(2), the Minister is not required to evaluate for himself the material or evidence that was considered by the AAT or his own delegates.

The Minister is also not required to carry out the same task or investigation as the AAT: Candemir v Minister of Home Affairs [2019] FCAFC 33 at [41].

If your permanent visa is subject to cancellation or is cancelled, you should consider engaging the services of an immigration lawyer (click here to learn how an immigration lawyer can help you).

You should note that if your visa application has been refused or your visa cancelled while you are in Australia, you may be prevented from lodging another visa application (click here to learn more about section 48 bar and visa application limitations).

Your visa, including permanent residence visa can also be cancelled under section 109 if you have provided incorrect information in a visa application (click here to learn more).

Australian migration law is complex and difficult to understand, contact our immigration lawyer for a consultation (fee applies) regarding your visa cancellation or visa refusal. You may also refer to our FAQs for answers regarding visa application or visa cancellation by clicking here or click here to learn more about Ministerial Direction No. 79.

If your visa has been cancelled, you may be prevented for 3 years from applying for another visa (click here to learn more).

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.