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1 Summary

Under section 501 (and/or sections 501A and 501B)[1] of the Migration Act 1958 (Cth) (Migration Act), a non-citizen’s application for a visa may be refused or their visa may be cancelled if they do not satisfy the Minister for Immigration and Citizenship (the Minister), or the Minister’s delegate, that they pass the ‘character test’. During the 2011-12 financial year 88 people had their visa applications refused and 157 people had their visas cancelled on this basis.[2]

Visa refusal or cancellation can have serious consequences for a person, including placement in immigration detention for lengthy periods of time, separation from family and friends, removal and effective exclusion from Australia. The Australian Human Rights Commission is concerned that a decision to refuse or cancel a person’s visa may lead to breaches of the human rights of that individual and their family members. The Commission is particularly concerned about the impact on refugees who have their applications for protection visas refused under section 501, and the impact of visa cancellation on long-term permanent residents of Australia who have strong ties to the Australian community, including Australian partners or spouses, and/or children.The Commission has concerns about:

  • the risk that such persons may be subjected to arbitrary detention (including prolonged or indefinite detention)
  • the risk of separation from children and other family members due to a person’s detention and/or removal from Australia
  • the broad nature of the Minister’s personal powers to refuse or cancel a visa on character grounds, and the limited ability of persons to seek review of the Minister’s decisions.

This background paper sets out some basic information about the process of visa refusal and cancellation under section 501, and discusses these human rights concerns about the process and its consequences.

[1] Under sections 501A and 501B of the Migration Act 1958 (Cth) the Minister for Immigration and Citizenship has the power to set aside an initial decision to refuse to grant or to cancel a visa made under section 501, and substitute it with his or her own decision to refuse to grant or to cancel the visa, on a similar basis (i.e. for failure of the character test). Throughout this paper, general references to visa refusal or cancellation under section 501 should be taken as also referring to refusal or cancellation decisions made by the Minister under sections 501A and 501B, unless the context suggests otherwise.

[2] Department of Immigration and Citizenship, Annual Report 2011-12 (2012), p 174. At http://www.immi.gov.au/about/reports/annual/2011-12/ (viewed 24 June 2013).