How to appeal a Visa cancellation under section 501 of the migration act due to a criminal record

How to appeal a Visa cancellation under section 501 of the Migration Act due to a criminal record

Having your visa cancelled under Section 501 of the Migration Act can be overwhelming and life-changing. This section allows the Australian government to cancel or refuse visas based on an individual’s criminal record or failure to meet character requirements. However, even if your visa has been cancelled, there may still be a chance to appeal the decision, especially if you can provide evidence of rehabilitation, strong ties to Australia, and a low risk of reoffending.

In this guide, I’ll walk you through the essential steps and considerations for appealing a visa cancellation under Section 501, along with some practical tips to help you succeed. Remember, if there’s any chance of success, you need to immediately appeal the cancellation decision. If you miss the deadlines—usually nine days—you could permanently lose your right to appeal.

Can you appeal a Visa cancellation decision made under section 501?

When your visa is cancelled under Section 501, the first thing to determine is who made the decision. Was it the Minister for Home Affairs, the Assistant Minister, or a delegate of the Minister? The person who cancelled your visa will affect your ability to appeal.

•  If the Minister or Assistant Minister personally cancelled your visa, you cannot appeal to the Administrative Review Tribunal (ART). In this case, your only option is to appeal directly to the Federal Court, where you need to show that the Minister’s decision contained a legal error.
• If a delegate of the Minister cancelled your visa, you do have the right to appeal to the ART. The ART can review the decision to cancel your visa in the general division. You should also quickly apply for a revocation of the cancellation to prevent further complications.
  
  

What is a section 501 Visa cancellation?

Under Section 501(3A) of the Migration Act, a visa must be cancelled if the visa holder has been sentenced to imprisonment for certain crimes. These include sexually-based offences involving children or other crimes that fail the character test. These mandatory cancellations are known as 501 cancellations, and they often leave individuals feeling as if they have limited appeal options.

Understanding section 501 of the migration act

Section 501 gives the Minister for Home Affairs or their delegate the power to cancel or refuse visas if a person fails to meet the character requirements. This section is usually applied when someone has a criminal record or is considered a risk to the Australian community. Crimes involving violence, sexual offences, or repeated misconduct are particularly concerning.

If your visa has been cancelled under Section 501, you will receive a notice explaining the reasons for the decision. You may have the right to appeal, depending on who made the decision. Before appealing, it is important to understand the main factors that decision-makers will consider.

Key considerations for appealing a Visa cancellation

The Ministerial Direction No. 110 outlines the framework for making decisions on visa cancellations under Section 501. Below are the key considerations that decision-makers will assess during your appeal:

1. Protection of the Australian community

The primary goal of any decision regarding a visa cancellation under Section 501 is to protect the Australian community. The government takes a firm stance when it comes to protecting the public from individuals with serious criminal histories, especially those involved in violent, sexual, or drug-related crimes.

Practical Tip:
When appealing a visa cancellation, focus on proving that you no longer pose a risk to the community. You can:

• Provide psychologist reports showing that you’ve received treatment and are unlikely to re-offend.
• Include sentencing remarks from the judge that highlight your remorse and any signs of rehabilitation.
• Submit evidence of rehabilitation programs or courses you’ve completed, such as anger management or drug treatment programs.

2. Family violence

Australia has a zero-tolerance policy toward family violence. If your visa cancellation relates to family violence, it will weigh heavily against you. However, you may be able to show rehabilitation efforts, such as attending counseling or participating in relevant programs, to support your case.

Practical Tip:
If you’ve been involved in family violence, it’s essential to demonstrate that you’ve taken steps toward rehabilitation:

• Submit evidence that you’ve participated in anger management programs or counseling.
• Provide personal references from professionals who are aware of your efforts to change.
• Show compliance with any court orders or conditions, such as protection orders or rehabilitation programs.

3. Ties to Australia

When deciding on an appeal, authorities will consider your ties to Australia, such as family relationships, how long you’ve lived in the country, and your contributions to society. Recent changes in Ministerial Direction 110 have made it harder for long-term residents alone to weigh in favor of keeping a visa if the person has committed serious offenses.

Practical Tip:
Strengthen your appeal by showing your positive contributions to Australia. Include:

• Employment history, with proof of stable, long-term work.
• Evidence of community involvement, such as volunteer work or membership in local organizations.
• Personal statements from family and community leaders who support your application and explain how the cancellation affects them.

4. Best interests of minor children in Australia

If you have minor children in Australia, their well-being is a significant factor in your appeal. The best interests of the child are heavily considered, especially if you play a key role in their care and upbringing.

Practical Tip:
If the visa cancellation impacts your children, you’ll need to provide solid evidence of your involvement as a parent:

• Submit statements from teachers, psychologists, or social workers describing your involvement in your child’s life.
• Provide proof of financial support and evidence of daily care.
• Highlight how the cancellation will negatively affect your child’s emotional and psychological health.

5. Expectations of the Australian community

The expectations of the Australian community are also considered when reviewing a visa cancellation. The community tends to support cancelling visas for serious crimes, but if you can demonstrate reform, this may influence the decision.

Practical Tip:
Show how you’ve reformed and are contributing positively to the community. Evidence to support this may include:

• Completed rehabilitation programs, such as vocational training or education.
• Statements from employers or community leaders who can testify to your improved character and contributions to society.

What evidence should you provide for your appeal?

Your chances of success will depend largely on the quality and completeness of the evidence you provide. Here’s what to include:

• Psychologist Reports:
  These should document your therapy or treatment and prove that you no longer pose a risk.
• Sentencing Remarks:
  Include positive remarks from the judge about your remorse or rehabilitation.
• Personal Reference Letters:
  References should come from people who know about your criminal history but can attest to your reform and positive impact.
• Certificates of Completed Programs:
  Include certificates from rehabilitation programs, anger management courses, or other educational efforts.
• Special Circumstances Statements:
  If you have unique circumstances, such as caring for a family member with special needs, make sure to explain these.

What is the 84-day rule?

The 84-day rule is critical in cases involving Section 501 visa cancellations. Once you lodge an appeal with the ART, the tribunal is required to make a decision within 84 days. If no decision is made within this time frame, the appeal is automatically considered refused, and the original cancellation stands.

Important Notes About the 84-Day Rule:

• The clock starts ticking as soon as your appeal is lodged with the ART.
• If the ART does not make a decision within the 84-day window, the decision defaults to a negative outcome, meaning the cancellation is upheld.
• You may be able to challenge the refusal further, but it will complicate your case and require more time.

How long will the section 501 appeal process take?

If you appeal to the ART, the hearing may last a day, but complex cases could take longer. The tribunal usually provides decisions shortly after the hearing.

If your visa was cancelled by the Minister, you’ll need to appeal to the Federal Court. This process is more complex and can take around seven months. Be prepared for variations in timing depending on the details of your case.

Forensic psychologists and your section 501 appeal

If your visa has been cancelled under Section 501 for failing the character test, a report from a forensic psychologist can be vital in demonstrating your rehabilitation and proving that you no longer pose a risk of reoffending. Engaging a forensic psychologist to evaluate your case and provide expert testimony can significantly strengthen your appeal by offering a professional, independent assessment.

Below is a list of forensic psychologists who may be able to assist with visa cancellations under Section 501 of the Migration Act. You are encouraged to contact them to find someone who suits your needs. If you have worked with any of these professionals or know of others who could be valuable in such cases, please let me know, as your feedback could help others in similar situations.

Re-offending

The minister can deny you again

Even if you are successful in quashing a decision of the minister in the Federal Court, your success may be very hollow. 

Next step

A visa cancellation under Section 501 of the Migration Act is serious, but it doesn’t have to be the end of your time in Australia. By focusing on key considerations like rehabilitation, community ties, and reduced risk of reoffending, you can significantly improve your chances of success. Every case is different, and consulting with an immigration lawyer can provide you with essential guidance throughout the appeal process.