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Cancelling a visa on character grounds

Information about when a prisoner may have their visa cancelled on character grounds.

The powers to refuse to grant or to cancel a visa on the grounds of a person's character were further broadened in April 2021. Sometimes the Department of Home Affairs (DHA) has no discretion and must cancel a visa. In other cases DHA has discretion.

See Mandatory visa cancellations.

When a visa must be cancelled

A visa must be cancelled if the person:

  • is currently serving a full-time custodial sentence and
  • they have been sentenced to prison for 12 months or more (it does not matter how much time the person actually served or how long ago this sentence was served, suspended sentences are counted too), or
  • they have been convicted of, had a charge proven for, or have been found guilty of, a sexually based crime involving a child, or
  • they have been sentenced to life imprisonment or death.

See ss. 501(3A), (7)—Migration Act 1958 (Cth)(opens in a new window).

Calculating the length of sentence

When considering whether a person has been, or is likely to be, sentenced to a term of 12 months’ imprisonment or more, please note the following:

  • Time served – the reference to 12 months’ imprisonment or more in s 501(3A) relates to an actual sentence imposed, regardless of whether it was for a past sentence or of time served.
  • Aggregate sentences – for the mandatory provisions to be triggered, there must be a sentence of 12 months’ imprisonment or more for one or more offences. If the person receives an aggregate sentence of 12 months or more for multiple offences, this will meet the definition of a ‘substantial criminal record’ under s 501 and place them at risk of having their visa cancelled.
  • Time on remand – s 501 provides that 'imprisonment' includes ‘any form of punitive detention in a facility or institution’. Therefore, a person on remand would not be at risk of a mandatory cancellation. However, if the person was later sentenced, and the period on remand counted as pre-sentence detention, it could be counted as part of a sentence to a period of imprisonment adding up to more than 12 months. You should bear this in mind when preparing a plea in mitigation.
  • Suspended sentences – count for the purposes of calculating a period of imprisonment of 12 months or more (Meng Kok Te v Minister for Immigration & Ethnic Affairs [1999] FCA 111 and Stretton v Minister for Immigration and Border Protection (No. 2) [2015] FCA 559).
  • Youth detention – a 12 month detention order in a youth residential centre has been found to count as imprisonment for the purposes of s 501 (Nuon v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 653). Therefore, the mandatory cancellation provisions are potentially applicable to children and young people. Note also that under s 459 of the Children, Youth & Families Act 2005 (Vic), a person is still considered under sentence until the end of their parole period.

See also Mandatory Visa Cancellations.

When a visa may be cancelled

A visa may be cancelled if the person:

  • DHA reasonably suspects that the person does not pass the 'character test', and
  • the person does not satisfy DHA that they do pass the character test.

See s. 501(2)—Migration Act 1958 (Cth)(opens in a new window).

Note: Applications for a visa can also be refused if a person does not pass the character test.

Ministerial Direction

Where there is discretion to refuse to grant or cancel a visa, DHA must consider whether to exercise the discretion given the specific circumstances of the case. The purpose of the Direction is to provide further guidance to DHA officers when exercising this discretionary power. The DHA delegate must comply with any Direction made by the Minister. Therefore, DHA must take into account the matters listed in the Direction.

See:

Personal intervention by Minister

The Minister may personally refuse to grant a visa or cancel the visa of a person who does not pass the character test where the Minister is satisfied that the refusal or cancellation is in the ‘national interest’.

The Act specifically states that natural justice does not apply to the decision by the Minister.

See s. 501(3)—Migration Act 1958 (Cth)(opens in a new window).

What happens when a visa is cancelled?

When a visa is cancelled the person becomes an unlawful citizen. When the person has finished their prison sentence, they will be taken directly from prison to a detention centre. They will not be able to serve any parole period that they have been granted.

They will be detained until their visa cancellation is revoked or they are removed from Australia.

There is no provision for the person to be released on a bridging visa until a decision has been made. This means the person will have to remain in detention.

More information

Legislation

Migration act 1958 (Vic)

  • 501—refusal or cancellation of visa on character grounds

See Migration Act 1958 (Cth)(opens in a new window).

Reference

Department of Home Affairs

This is the Minister's direction about the decision-making process relating to cancellation of visas on character grounds.

See Minister's Direction No. 99 Migration Act 1958 (pdf, 1.2 MB)(opens in a new window)

The 'Find legal answers' section of the website has information about mandatory visa cancellation. There is also a self-help kit for prisoners.

See Mandatory visa cancellations(opens in a new window).

Updated