Can you appeal a visa cancellation decision made under section 501?
Do you have a section 501 cancellation? What should you do next? The way forward after a section 501 cancellation is different to visa cancellation under different sections of the Migration Act. The very first question is, who cancelled your visa? Was the decision-maker the Minister or a delegate of the Minister?
It depends on who cancelled your visa.
If your visa is cancelled by the Minister or Assistant Minister personally, then there is no right of review to the AAT. The only opportunity for appeal is in the Federal Court. In that jurisdiction, you must convince a Federal Court judge that the Minister made a decision that was infected with some type of legal error.
If your visa is cancelled under section 501 but not by the Minister or Assistant Minister, then you will usually have an opportunity to have the decision to cancel your visa reviewed. The opportunity for appeal is in the general division of the AAT. If your visa is cancelled by a delegate of the Minister, we can help apply for revocation of the cancellation asap.
What is a 501 visa cancellation?
Section 501(3A) of the Migration Act states that a visa must be cancelled when the visa holder has been sentenced to imprisonment or has been found guilty of a sexually-based crime involving a child, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth. This is also called a mandatory cancellation.
What is the character test?
All non-citizens who wish to enter or remain in Australia must satisfy the character requirement. The two objectives of the character framework are:
- to protect the Australian community from the risk of harm posed by non-citizens of character concern, in line with community and government expectations
- to maintain the integrity and public confidence in the character framework.
What is a substantial criminal record?
The Migration Act defines a substantial criminal record. You have a substantial criminal record if:
- You have been sentenced to death or imprisonment for life; or
- You have been sentenced to a term of imprisonment of 12 months or more; or
- You have been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more.
How long will the section 501 appeal process take?
If you have appealed to the Tribunal, hearings are listed for a one-day hearing, but this can proceed beyond one day. Decisions are received within a relatively short period of time.
In the case where the Minister and not a delegate has cancelled your visa, you’ll need to make an application to the Federal Court of Australia (not the Federal Circuit Court) and hope to have the decision quashed on the basis that the decision is infected with some legal error. The length of the appeal process to the Federal Court will be different for each case, normally around 7 months, give or take 3 months.
Litigation in the Federal Court is different to how cases for revocation are run at the AAT. Make sure your advisor is experienced in running section 501 appeals.
Forensic psychologists who may help with your section 501 appeal
A forensic psychologist listed below might be of assistance to you in the case of a visa cancellation under section 501 of the Migration Act. Below, I’ve compiled a list of psychologists that you may wish to contact, to find somebody suitable for your needs.
Please do let me know what your experience is with these psychologists and whether you are aware of others who could be added to this list.
Perhaps the biggest issue in winning a case where a visa has been cancelled because of failing the character test is the challenge to show to the decision-maker that there is no risk of re-offending. Of course, this is very difficult to show yourself. Naturally, you will feel that you are rehabilitated and you may not have any motivation to re-offend. A psychologist’s report might be useful to assist you to demonstrate or corroborate what in fact is the risk of 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.
This is because there is a power for the minister to simply remake the decision to cancel once again, except on the second occasion to learn from whatever error was made when the decision was first taken, and to again cancel the visa …. but this time do so in a manner where the decision is impeccable in the sense that it cannot be challenged as having been infected with any legal error.
Where should you start?
At MyVisa®, we are solicitors and registered migration agents. We can act as your legal advisor before the Administrative Appeals Tribunal (“Tribunal”). We’ll brief a barrister to appear with us at your hearing and we will instruct your barrister at the hearing.
Book a chat with me today to see if we are a good fit!