A character grounds visa cancellation can have serious consequences for a visa holder and their family. In this matter, detailed preparation, written submissions and supporting evidence contributed to a successful application for review by the Administrative Review Tribunal (ART).
| Matter type | Administrative Review Tribunal migration review |
| Challenge | A visa cancellation based on an extensive criminal history and adverse police intelligence |
| Represented by | Sali Romie, Solicitor |
| Outcome | The ART set aside the Department’s cancellation decision and remitted the matter with a direction not to exercise the discretion to cancel the visa. |
The challenge
The applicant had an extensive criminal history spanning many years. In support of the visa cancellation, the Department of Home Affairs relied on that history together with substantial intelligence gathered by the New South Wales Police Force.
The material before the ART included adverse information and intelligence reports asserting that the applicant posed an ongoing risk to the Australian community.
The character grounds cancellation issue
Section 501 of the Migration Act 1958 contains powers to refuse or cancel visas on character grounds. The precise power, review rights and applicable procedures depend on the individual decision and whether it was made by a departmental delegate or the Minister personally.
In this case, it was not disputed that the applicant failed the character test. The issue for the ART was whether the discretion to cancel the visa should be exercised after considering the relevant facts, evidence and applicable Ministerial Direction.
At the processing date, Ministerial Direction 110 applies to relevant decisions under section 501 and subsection 501CA(4). It commenced on 21 June 2024 and revoked Direction 99.
Evidence and submissions
Led by solicitor Sali Romie, Jameson Law’s immigration law team prepared comprehensive written submissions and extensive supporting evidence addressing the considerations relevant to the exercise of the discretion.
The submissions examined the applicant’s criminal history, the police intelligence, protection of the Australian community and the broader public interest. They also addressed the consequences that cancellation would have for the applicant and his family.
The evidence covered:
- the applicant’s rehabilitation and the circumstances surrounding his historical offending;
- his strong and longstanding ties to Australia;
- his extensive family support network and continuing role in supporting family members;
- the severe hardship and practical impediments he would face if removed from Australia; and
- why the discretion to cancel should not be exercised despite the seriousness of the material relied on by the Department.
The ART decision
After considering the relevant material under the applicable Ministerial Direction, the ART determined that the discretion to cancel the applicant’s visa should not be exercised.
The ART set aside the Department’s cancellation decision and remitted the matter with a direction not to exercise the discretion to cancel the visa.
Why this outcome matters
This outcome shows that failing the character test does not necessarily determine how a discretionary cancellation matter will be decided. The decision-maker must consider the statutory power, applicable direction, individual circumstances and supporting evidence.
Rehabilitation, family ties and hardship will not carry the same weight in every matter. Character cases are assessed on their own facts, and the protection of the Australian community remains an important consideration.
Seek advice promptly
Review rights and time limits depend on the decision made. For certain section 501 and subsection 501CA(4) decisions involving a person in the migration zone, section 500 of the Migration Act provides a nine-day period for lodging an ART review application after notification. Other decisions may have different rights or may not be reviewable by the ART.
Check the decision letter and review information immediately. If you have received a Notice of Intention to Consider Cancellation or a visa cancellation decision, contact Jameson Law for advice about your circumstances.
Frequently Asked Questions
What is a character grounds visa cancellation?
It is a decision to cancel a visa under a character-related power in the Migration Act 1958. The precise legal basis, procedure and available review rights depend on the individual decision.
Can the ART review a section 501 visa cancellation?
The ART can review certain section 501 decisions made by a delegate of the Minister. Ministerial decisions and some other decisions may not be reviewable by the ART, so the decision record should be checked promptly.
Does failing the character test automatically result in cancellation?
Not in every case. Where the relevant power is discretionary, the decision-maker must decide whether to exercise that power after considering the legislation, the applicable Ministerial Direction and the evidence.
What considerations apply to a character cancellation decision?
Direction 110 addresses matters including protection of the Australian community, expectations of the Australian community, the best interests of affected minor children, ties to Australia, international obligations and other impacts. The considerations that apply depend on the decision.
How long do I have to apply for ART review?
For certain section 501 and subsection 501CA(4) decisions concerning a person in the migration zone, the Migration Act requires an ART application within nine days after notification. Review rights vary, so check the decision letter and obtain advice immediately.
