What is Section 501 of the Migration Act?

Section 501 gives the Minister for Home Affairs, or a delegated officer, the discretion to refuse or cancel a visa if a person does not pass the “character test”. This section applies to both temporary and permanent visa holders, including long-term residents who may have lived in Australia for decades.

The character test is defined under s 501(6). Failing to meet the character test can result in visa refusal before entry to Australia or cancellation while already in the country.

What Is the Character Test?

The character test assesses whether an individual is of good character, based on several factors, including, but not limited to:

Substantial criminal record: This typically refers to a sentence of 12 months or more in prison (either a single sentence or multiple sentences).
Association with persons or groups involved in criminal conduct.
Past and present criminal or general conduct.
Risk to the Australian community: If a person is considered likely to engage in criminal conduct, harass or intimidate others, or incite discord in the community.
Sexual offences involving a child, even if there was no conviction.
Convictions for migration or visa fraud.

Someone may fail the character test based on their conduct or associations, even without a criminal conviction.

Mandatory vs Discretionary Cancellation

Under s 501(3A), the Minister must cancel a visa if:

The visa holder is serving a prison sentence; and
They have been sentenced to 12 months or more imprisonment; and
They fail the character test due to a substantial criminal record or a child sex offence.

This is referred to as mandatory cancellation. In such cases, the person is notified of the cancellation and allowed to request revocation of the decision under s 501CA.

Discretionary cancellations, on the other hand, occur when the Minister (or a delegate) exercises judgment and determines, often based on the individual’s conduct or associations, that the person does not pass the character test and should not hold a visa.

Ministerial Powers & Personal Intervention

One of the most controversial aspects of Section 501 is the broad, often non-reviewable power held by the Minister. Under s 501(3), the Minister can personally refuse or cancel a visa in the national interest, even if the person passes the character test. This power is not subject to merits review by the Administrative Review Tribunal (ART), making it difficult to challenge.

Where a decision is made by a delegate of the Minister, the visa holder typically has a right to apply for review to the ART. However, strict time limits apply, and the complexity of such cases usually requires legal representation.

What You Should Do If You Receive a Section 501 Notice

Your legal rights and the time limits for response are strict. Whether you are facing a visa refusal, cancellation, or seeking revocation after a mandatory cancellation, it is vital to act quickly and seek specialist migration legal advice.

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If you or a family member is affected by a Section 501 decision, seek legal advice immediately. These matters are complex, and your response must be carefully crafted within tight timeframes.