Please note that the information we provide in this article about the refusal or cancellation of visas is current as of the date of publication, and the DHA regularly updates rules and regulations. Kindly ensure that you check the official updates before making any decisions, or speak with an immigration lawyer for the most up-to-date information, as laws and conditions are subject to change.
This article will discuss other miscellaneous provisions on the refusal or cancellation of visas under the Migration Act 1958, specifically sections 500A to 501B. These sections cover the following topics:
- Refusal or cancellation of temporary safe haven visas;
- Refusal or cancellation of visas on character grounds;
- Setting aside and substitution of non-adverse section 501 decision; and
- Setting aside and substitution of adverse section 501 decision.
Refusal or Cancellation of Visas: Temporary Safe Haven Visa
What is a temporary safe haven visa (subclass 790)? This is a visa for individuals who enter Australia without a visa and intend to seek asylum in the country. Specifically, it allows you to stay in Australia temporarily if:
- You engage Australia’s protection obligations; and
- You meet all other requirements for the grant of the visa.
For an in-depth discussion about this visa, you can read our article about it here.
Section 500A of this Act states that the Minister has the power to refuse to grant or cancel a subclass 790 visa if they deem that any of the following circumstances exist:
- The person associates with another person or group or organisation that engages in criminal activities;
- With regard to either or both of the following:
- the person’s past and present criminal conduct;
- the person’s past and present general conduct;
- the person is not of good character; or
- If the individual can enter Australia, there is a significant risk that the person would:
- engage in criminal conduct in Australia; or
- harass, molest, intimidate or stalk another person in Australia; or
- vilify a segment of the Australian community; or
- incite discord in the Australian community or in a segment of that community; or
- represent a danger to the Australian community or to a segment of that community.
- The person is a national security threat; or
- The person’s presence in Australia would prejudice Australia’s international relations.
Moreover, if the Australian courts sentence a person to death, imprisonment for life, or imprisonment of 12 months or more or convicts such person of an offence, the Minister may also refuse or cancel his or her temporary safe haven visa.
Refusal or Cancellation of Visas on Character Grounds
The Minister may proceed with the refusal or cancellation of visas by using character grounds as basis. Additionally, a character test under section 501 involves the determination or evaluation whether:
- The person has a substantial criminal record.
- There is a conviction of an offence by the person while they are in immigration detention, during an escape from immigration detention, or after the person escaped from immigration detention.
- There is a conviction of a section 197A offence (escape from immigration detention).
- There is a reasonable suspicion by the Minister that the person is in association with a criminal group or organisation.
- There is a reasonable suspicion by the Minister that the person has involvement in conduct constituting offences such as people smuggling, human trafficking, crimes of genocide, crimes against humanity, war crimes, crimes of torture or slavery, or crimes of serious international concern.
Moreover, the Minister, in conducting the character test, will consider the person’s past and present criminal and general conduct. If the person does not pass this test, the Minister will not grant such person a visa.
Meaning of Substantial Criminal Record
What does a substantial criminal record mean? This section establishes the following criteria that would constitute a substantial criminal record:
- the person has been sentenced to death; or
- the person has been sentenced to imprisonment for life; or
- the person has been sentenced to a 12 month-imprisonment or more; or
- the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
- the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or
- the person is not fit to plead, has committed the offence based on the available evidence, and as a result, the person is in detention.
Setting Aside and Substitution of Non-Adverse and Adverse Section 501 Decision
The previous section pertains to the refusal or cancellation of visas based on character grounds. Section 501A talks about the setting aside and substitution of non-adverse section 501 decision.
If a delegate of the Minister or the Administrative Appeals Tribunal (AAT) makes a section 501 decision, the Minister may set aside such decision and refuse to grant or cancel such visa. The Minister may do so if there is:
- Reasonable suspicion that the person does not pass the character test; and
- Non-satisfaction of the character test; and
- An opinion from the Minister that they are satisfied that the refusal or cancellation is a national interest matter.
As to the setting aside and substitution of an adverse section 501 decision, the following rules apply (s501B):
- The Minister may refuse or cancel such visa if there is reasonable suspicion that the person does not pass the character test, if the person fails the test, or if the Minister thinks that the refusal or cancellation is a national interest matter.
- The Minister may only exercise this power personally.
- A s501B decision is not reviewable decision under the Migration Act.
- To avoid doubt, the Minister may set aside the original decision even if the original decision is a subject of an application for review by the AAT.
JB Solicitors: Migration Attorneys at Your Service
Australian migration laws can be confusing to understand due to its technical nature. That’s why seeking the help of a migration attorney from JB Solicitors will make it easier for you to comprehend the rules as to the refusal or cancellation of visas. If you’re having problems with Australian immigration, consult with a lawyer immediately.
Our migration lawyers can guide you through any migration processes that the Department of Home Affairs (DHA) or the Administrative Appeals Tribunal may require. We will also provide legal advice based on your current circumstances that will lead to the resolution of whatever migration law concern you have.
Contact us today to know more about the refusal or cancellation of visas.