501 Visa Cancellation – Criminal Record & Character Test
Worried about your criminal record leading to a section 501 visa cancellation?
Section 501 is the scariest visa issue of 2016?
If you have a criminal record, things look grim since 2015. MANDATORY CANCELLATION applies when you have conviction terms (sentences) if added together, totalling more than 12 months.
Immigration laws change faster than almost every other field of law. Immigration lawyers advising people with criminal records need to be very familiar with recent changes and policies.
Visa cancellations under section 501 of the Migration Act are now, by far, the scariest issue facing visa applicants who have a criminal record.
New Criminal Deportation Focus
Criminal deportation appears to be a big focus for the present government and the current Minister.
Many visas have been cancelled since Ministerial Direction (Direction 65) was re-issued in December 2014. In the 2015 year and so far in 2016, we’ve seen record numbers of visa cancellation cases because of criminal records.
When s501 Visa Cancellation Kicks In
Once the total of all of your criminal convictions equals or exceeds 12 months, this triggers the power under section 501 for the Minister to cancel your visa. It is just a matter of time that you’ll be served with a notice asking you why your visa should not be cancelled.
I can help with submissions as to why a visa that has been cancelled by a delegate of the Minister should be revoked.
Urgent revocation submissions are possible if the Minister has not acted personally to cancel the visa.
If the revocation of a visa cancellation is not allowed (eg. if the Minister decides to exercise the section 501 visa cancellation power personally) then it may be possible to make an application to the Federal Court of Australia to have the decision quashed for being legally unreasonable.
Only legally unreasonable decisions of the Minister will be struck down by the courts…And the courts have had a lot of opportunities recently to explore what is “within” the Minister’s power and “outside” his power.
The Minister must act “legally reasonably” when cancelling a visa. What is a ‘legally reasonable’ decision was considered in the case of Mas Eden v The Minister for Immigration in 2015 and on appeal in 2016. I represented Mas Eden on both occasions.
I was successful in the visa cancellation appeal of Amoorthum v Minister for Immigration. Clarel Amoorthum had his visa refused personally by the Minister after failing the character test. The decision to cancel was found to be legally unreasonable by His Honour Justice Tracey in the Federal Court of Australia in 2016.
Another case in which I am representing a visa applicant who has had their visa cancelled under the section 501 power is The Minister for Immigration v Tam Thi Le. My win in this case before the Federal Court of Australia was appealed by the Minister. A decision was handed down in 2016 by the Full Court of the Federal Court of Australia and is of particular interest to anyone who was ever granted residence on the basis of being a refugee.
Section 501 Visa Cancellation Tips
# 1 – Make sure that your submissions are well presented if your visa has been cancelled under Section 501 – you have one big chance to make a difference to any cancellation decision.
#2 – The best time to act is early – ideally when you receive a notice of intention to consider cancellation of your visa. If this is not possible, you’ll need to know whether an application for revocation of a visa that has already been cancelled, is possible.
#3 – If you have run out of time, as Mas Eden, Clarel Amoorthum and Tam Thi Le all did, there may still be scope to lodge an application out of time. I’ve done this in all three of these 501 visa cancellation cases but you must have an arguable case, a reasonable explanation for the delay and show there is no prejudice to the Minister.
Call me to discuss your circumstances and what options you have.