Section 501 Cancellation

Section 501 Cancellation - Cancellation on character grounds.

If your visa has been cancelled because you have failed the character test – also known as section 501 cancellation – then you can still appeal the decision, but you cannot be granted another visa unless and until your appeal is successful.
Under section 501 of the Migration Act 1958 (Cth) a non-citizen’s visa may be refused or cancelled if they do not pass the character test.

What is the character test?

The character test is defined under section 501(6) and a person will fail it if they:

  • have a substantial criminal record
  • have been convicted of escaping from immigration detention.
  • have committed offences whilst in immigration detention
  • have been a member of, or had associations with, an organisation involved in criminal conduct.
  • is reasonably suspected of being involved with people smuggling, people trafficking, genocide, war crimes or crimes against humanity
  • have convictions for one or more sexually based offences involving a child
  • are the subject of an adverse assessment by ASIO
  • an Interpol notice has been issued from which it would be reasonable to conclude that they present a risk to the Australian community.

The most common cause of failure of the character test is having a substantial criminal record.

What is a ‘substantial criminal record’?

Under section 501(7) a person has a substantial criminal record if they have been:

  • sentenced to a term of imprisonment for 12 months or more.
  • sentenced to death
  • sentenced to life imprisonment
  • acquitted of an offence on the grounds of mental illness and, as a result, detained in a facility or institution
  • found by a court not fit to plead and the court has nonetheless made a finding of guilt on the evidence available and they have been detained in a facility or institution

Most non-citizens who fail the character test will do so as a result of having been sentenced to a term of imprisonment for 12 months or more.