Section 501 — Visa Cancellation on Character Grounds
NOICC issued: The Department issues a Notice of Intention to Consider Cancellation (NOICC) setting out the grounds for cancellation and inviting representations. For mandatory cancellations, the NOICC may be issued while the person is still in prison.
Representations lodged: You (or your lawyer) prepare and lodge written representations responding to the NOICC. This is your opportunity to present evidence of rehabilitation, ties to Australia, the best interests of children, and any other relevant factors. The quality of these representations is critical.
Decision made: A delegate of the Minister (or the Minister personally in some cases) considers the representations and decides whether to cancel the visa. For mandatory cancellations, the decision is whether to revoke the automatic cancellation under s.501CA.
ART appeal (if applicable): If the decision is made by a delegate and is adverse, you may apply to the Administrative Review Tribunal (ART) for merits review. The ART can affirm, vary, or set aside the decision. Time limits apply — typically 9 days from notification for people in detention.
Ministerial intervention (last resort): If the ART affirms the cancellation, you may request the Minister personally intervene under s.501J (as directed by the September 2025 Ministerial Instruction) or s.351. This is a last resort and is not a right — it is a discretionary power exercised by the Minister personally.
Questions and answers
What is the difference between mandatory and discretionary cancellation under s.501?
Mandatory cancellation under s.501(3A) is automatic — if the Department becomes aware that a person is serving a full-time custodial sentence and has a substantial criminal record, the visa must be cancelled. There is no discretion. Discretionary cancellation under s.501(2) gives the Minister or delegate the power to cancel a visa where a person does not pass the character test, but it is not automatic — the decision-maker must exercise a discretion and weigh the relevant factors set out in Ministerial Direction 110.
What counts as a 'substantial criminal record' under s.501?
Section 501(7) of the Migration Act 1958 defines a substantial criminal record as: a sentence of death; a sentence of life imprisonment; a sentence of 12 months or more imprisonment; two or more sentences that together total 12 months or more; or an acquittal on grounds of unsoundness of mind or insanity where the person was detained in a facility. Suspended sentences count. Time actually served is not the relevant measure — it is the length of the sentence imposed.
Can I appeal a s.501 visa cancellation?
In most cases, yes. If your visa is cancelled under s.501(3A) (mandatory cancellation), you have the right to make representations to the Minister seeking revocation under s.501CA. If the Minister declines to revoke, you may apply to the Administrative Review Tribunal (ART) for merits review. If your visa is cancelled under s.501(2) (discretionary cancellation) by a delegate, you may also apply to the ART. However, if the Minister personally makes the decision, there is no merits review — only judicial review in the Federal Court is available.
What is a NOICC and how long do I have to respond?
A NOICC is a Notice of Intention to Consider Cancellation. It is the formal document the Department sends to advise you that it is considering cancelling your visa on character grounds. The NOICC will specify the grounds being considered and invite you to make representations. The time limit for responding is typically 28 days for people in immigration detention and longer for those in the community, but the specific deadline will be stated in the notice. Missing the deadline is extremely serious — you should seek legal advice immediately upon receiving a NOICC.
What factors does the Minister consider when deciding whether to cancel a visa?
Ministerial Direction 110 sets out the framework for exercising the discretion under s.501. The primary considerations are: protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. The secondary considerations include: the strength, nature, and duration of ties to Australia; the impact on family members; the age of the person; the extent of impediments to return to the home country; and any relevant international obligations. The Direction requires decision-makers to give primary considerations greater weight than secondary considerations.
Does the September 2025 Ministerial Instruction affect s.501 cancellations?
Yes. The Ministerial Instruction issued on 17 September 2025 includes a direction under s.501J that affects how the Minister's personal intervention power operates in character cancellation cases. Specifically, the Instruction addresses the circumstances in which the Minister may substitute a more favourable decision in cases where the ART has affirmed a cancellation. This is relevant to clients who have exhausted their ART appeal and are seeking ministerial intervention as a last resort.
Can a permanent resident have their visa cancelled under s.501?
Yes. Section 501 applies to all non-citizens, including permanent residents. Long-term permanent residents — including people who have lived in Australia for decades — have had their visas cancelled under s.501 and been removed from Australia. The length of residence in Australia is a relevant factor in the discretion, but it does not provide immunity from cancellation. I have represented permanent residents in s.501 proceedings and the stakes are extremely high.
What happens if my visa is cancelled under s.501?
If your visa is cancelled under s.501, you become an unlawful non-citizen and may be detained in immigration detention. You will generally be subject to removal from Australia. A s.501 cancellation also triggers a three-year bar on applying for most Australian visas. In addition, a person whose visa has been cancelled under s.501 may be excluded from Australia permanently in some circumstances. The consequences are severe and require immediate legal advice.