Section 501 Character Refusals and Visa Cancellations: Review Rights, Time Limits and Pathways
Section 501 of the Migration Act 1958 is the character provision. A visa application may be refused where the applicant does not satisfy the Department that they pass the character test; a visa already held may be cancelled where the Department reasonably suspects that the holder does not pass it and the holder does not satisfy the Department that they do. After receiving one of these decisions, the first task is to establish three things: which of the four kinds of character decision it is, whether the Minister made it personally or a delegate made it, and how many days remain of the response period printed on the notice. Those three answers determine whether a review pathway exists at all, and for how many more days it stays open.
Character decisions carry the shortest review periods of any visa decision. After being notified in Australia of a reviewable character decision made by a delegate, an application to the Administrative Review Tribunal (ART) for review must be made within the 9 days after the day of notification, and the Tribunal has no power to extend that period. This page therefore deals with the time limits first and the pathways second.
First, establish which kind of character decision you are holding
Character refusal — the application was not granted
Under section 501(1), a visa application may be refused where the applicant does not satisfy the Department that they pass the character test. These decisions are usually made by a delegate of the Minister. The decision notice sets out the provision relied on, the reasons, whether review by the ART is available and the period for applying.
Discretionary cancellation — usually preceded by a notice of intention
Under section 501(2), a visa may be cancelled where the Department reasonably suspects that the holder does not pass the character test and the holder does not satisfy the Department that they pass it. This is a discretionary power. Inside Australia a Notice of Intention to Consider Cancellation (NOICC) is normally issued first, giving the holder a written opportunity to respond. The reasons and evidence against cancellation must be provided within the time limits stated in the notice and the applicable regulations; whether further material or a second response is possible depends on the procedure in the particular case.
Mandatory cancellation — cancelled first, revocation requested afterwards
Under section 501(3A), where the holder is serving a full-time sentence of imprisonment in a custodial institution for an offence against an Australian Commonwealth, State or Territory law, and fails the character test because of a substantial criminal record consisting of a death sentence, life imprisonment or a single term of 12 months or more, or because of a sexually based offence involving a child (including a finding of guilt or a proven charge without a recorded conviction), the visa must be cancelled and no notice of intention is issued beforehand. An aggregate of shorter sentences reaching 12 months does not on its own trigger mandatory cancellation. After the cancellation the Department notifies the person in writing and invites written representations seeking revocation of the cancellation; this is what is usually called a revocation request, and the period is 28 days from receipt of the notice. The mandatory cancellation itself cannot be reviewed by the ART; what can be reviewed is a later decision not to revoke it.
Decisions made personally by the Minister — no ART review
Under section 501(3), the Minister personally may refuse or cancel a visa where the Minister reasonably suspects that the person does not pass the character test and is satisfied that refusal or cancellation is in the national interest, and the rules of natural justice do not apply. These decisions cannot be reviewed by the ART. For a decision under section 501(3), a person eligible under section 501C and the Regulations (which restrict eligibility for people in Australia who are not in detention) may make written representations within 7 days after receiving the notice, seeking revocation by satisfying the Minister that they pass the character test; where a legal error is alleged, judicial review in the courts is available. The notice states who made the decision.
Time limits: the review window for character decisions is far shorter than for ordinary refusals
Applying to the ART for review: 9 days, not extendable
Under section 500(6B), after being notified in Australia of a reviewable section 501 decision made by a delegate, or of a decision not to revoke a mandatory cancellation, an application to the ART for review must be made within the 9 days after the day of notification; the day of notification itself is not counted. The ART’s guide states that where the ninth day falls on a Saturday, Sunday or public holiday the period runs to the next working day, and that the Tribunal has no power to extend it. The application must be accompanied by the decision notice and the set of documents the Department provided with it.
Revocation request after a mandatory cancellation: 28 days
Under Regulation 2.52 of the Migration Regulations, written representations seeking revocation of a cancellation under section 501(3A) must be made within 28 days of receiving the cancellation notice and the related information; the representations must be in English or accompanied by an accurate English translation. If the revocation request is refused, and the decision was made by a delegate, an application to the ART for review may still be made within 9 days.
The 84-day rule and the application fee
Under section 500(6L), in an onshore section 501 review the 84-day period starts on the day after the applicant is notified under section 501G(1) of the decision under review, the day of notification itself not counted; if the Tribunal has not made a decision within that period, the decision under review is taken to be affirmed. Where the review is of a decision not to revoke a mandatory cancellation, the 84 days run from notification of the non-revocation decision, not from the original cancellation. These cases therefore run to a compressed timetable from the outset: the Tribunal telephones the applicant within a week of receiving the application, holds a directions hearing by telephone first, and then lists the hearing. The standard ART application fee is AUD 1,195; it is reduced to AUD 100 for applicants who are in prison or immigration detention, receive legal aid for the application, hold a specified concession card, are under 18, receive specified Centrelink study payments, or are found by the Tribunal to be in financial hardship. The Tribunal does not begin the review until the fee is received. Figures as at the time this page was built.
Not sure which kind of character decision you are holding, or how many days are left?
What the character test looks at
Substantial criminal record
Under section 501(7), a person has a substantial criminal record if they have been sentenced to death, to imprisonment for life, to a single term of imprisonment of 12 months or more, or to two or more terms of imprisonment totalling 12 months or more; a person acquitted on the ground of mental impairment and detained in a facility as a result is also included, as is a person found unfit to plead where the court nevertheless found on the available evidence that the person committed the offence and the person was detained as a result. Because the terms are added together, several shorter sentences that together reach 12 months trigger this limb as well.
Other grounds for failing the character test
Under section 501(6), a person also fails the character test where, apart from a substantial criminal record: the Department reasonably suspects that the person is or has been a member of, or associated with, a group or organisation involved in criminal conduct; having regard to the person’s past and present criminal or general conduct, the person is not of good character; there is a risk that, if allowed to enter or remain in Australia, the person would engage in criminal conduct, harass others, incite discord in the community or represent a danger to the community; or a court in Australia or a foreign country has convicted the person of a sexually based offence involving a child, found them guilty, or found the charge proved, even if they were discharged without a conviction. The general-conduct and risk limbs do not require a conviction.
What the decision-maker must consider
For delegates and the ART, whether to refuse, cancel or revoke a cancellation is considered under a direction issued by the Minister under section 499. The current direction is Direction No. 110, in force from 21 June 2024, which replaced Direction No. 99. The considerations it lists include protection of the Australian community, family violence, the best interests of minor children in Australia, the expectations of the Australian community, ties to Australia and the impact on family members. The ART’s guide asks applicants to prepare their evidence and witnesses against this direction.
Pathways after the decision
Applying to the ART for review
Only decisions made by a delegate can be reviewed by the ART. The ART is independent of the Minister and the Department; it looks afresh at the information relevant to the case and makes its own decision. The Minister is usually represented at the hearing by a law firm; the applicant and any witnesses give evidence and answer questions. One procedural rule must be observed: written statements prepared by the applicant and witnesses, and documents the applicant wants the Tribunal to consider, must be given to the Minister’s representative at least 2 working days before the substantive hearing, or the member cannot take that evidence into account; documents already provided under section 501G(2) or 500(6F) are not subject to this restriction.
Requesting revocation of a mandatory cancellation
Under section 501CA(4), there are two routes to revocation: satisfying the decision-maker that the person does in fact pass the character test, or showing that there is “another reason” why the cancellation should be revoked. The second route addresses the considerations in Direction No. 110 one by one: protection of the community, family violence, the interests of minor children, community expectations, ties to Australia and so on. Where revocation succeeds, the cancellation is taken never to have been made.
Judicial review and ministerial intervention
Character decisions made personally by the Minister cannot be reviewed by the ART; whether a revocation procedure exists depends on the provision used and on statutory eligibility: section 501C covers decisions under section 501(3), and section 501CA covers mandatory cancellations under section 501(3A). Where a decision is thought to contain a legal error, judicial review in the courts may be sought; judicial review examines whether the decision was lawfully made and does not reassess the merits of the case. Once review avenues are exhausted, intervention by the Minister can be requested in some circumstances; it is an exceptional remedy, not a routine pathway.
Other consequences of a character decision
The risk of being in Australia without a visa
After a refusal or cancellation on character grounds, the person may have only a limited time to leave Australia, or may no longer hold a valid visa. A person in Australia without a valid visa may face immigration detention and removal. Lodging a review application or a revocation request does not by itself restore the visa or confer lawful status. Whether a bridging visa can be obtained after a cancellation, and on what conditions, depends on the person’s visa status and the timing, and has to be confirmed separately.
Restrictions on applying again onshore
Under section 501E, a person whose visa has been refused or cancelled under section 501 generally cannot make a further visa application while in Australia unless that decision has been revoked or set aside; statutory exceptions, including protection visas, must be checked individually, and other application bars and visa eligibility requirements may still apply. The Department’s website also notes that a person whose visa has been cancelled may face a re-entry ban and can be granted another visa only in limited circumstances.
Visas held by family members
The Department’s website notes that it may also cancel the visas of family members, children or other persons whose visas are linked to the cancelled visa. Each family member’s visa must be checked separately; a cancellation under section 501 does not mean every family visa is cancelled with it, but a character decision often affects more than one person.
How Newstars can help
For character cases, professional support concentrates on two things: establishing within a very short period which kind of decision you are holding and which pathways remain open; and organising the evidence and witnesses, against the considerations in Direction No. 110, into a form the Tribunal can accept.
Our registered migration agents will: unpack the decision notice and the accompanying documents and establish who made the decision, which provision it relies on and which time limit applies; assess whether the case has a basis for review or a revocation request, and whether a more suitable pathway exists; and help assemble criminal history, court documents, evidence of rehabilitation and employment, evidence of family relationships and witness statements so that the material is consistent and verifiable, and lodge it within the time limit.
What Newstars does
To be clear about roles: migration advice on eligibility and strategy is given by the registered migration agents in the Newstars migration department, who also represent clients at the review and follow the matter through; complicated matters, and legal work outside migration law, are referred to our associated law firm NS Legal. No firm can promise the outcome of a review or revocation request, or the time it will take.
Want to establish who made your decision and which time limit applies?
Book a Free Initial Consultation →Related pages
- Visa Appeals (ART): the review pathway after a refusal
- Character Test (VACCU): when a case enters character assessment
- NOICC: Notice of Intention to Consider Cancellation
- Revocation of a Visa Cancellation Decision
- Ministerial Intervention
- Judicial Review
- Student Visa Refusal and Cancellation Appeals
- Success story: 600 Visitor Visa refused under section 501, set aside at the ART
Frequently Asked Questions
From which day are the 9 days counted?
From the day after the person is notified of the decision under section 501G(1); the day of notification itself is not counted. The ART’s guide describes the period as the 9 days after the day you receive a copy of the decision and the two sets of documents from the Department. Where the ninth day falls on a Saturday, Sunday or public holiday, the period runs to the next working day. The Tribunal has no power to extend it, so the date of notification and the deadline should be checked on the day the notice arrives.
Can a section 501 decision made personally by the Minister be appealed?
Not to the ART. For a decision under section 501(3), a person eligible under section 501C and the Regulations may make written representations to the Minister seeking revocation within 7 days after receiving the notice; where a legal error is alleged, judicial review in the courts is available. The notice states who made the decision.
My visa was mandatorily cancelled while I am serving a sentence. What can I still do?
Under section 501CA, written representations seeking revocation of the cancellation may be made within 28 days of receiving the cancellation notice, showing either that you pass the character test or that there is another reason the cancellation should be revoked. If a delegate refuses the revocation request, an application to the ART for review may still be made within 9 days.
I have a criminal record. Does that mean I automatically fail the character test?
Not necessarily. A single prison term of at least 12 months, or terms totalling at least 12 months, are only some of the grounds for a substantial criminal record; the other statutory grounds and each limb of section 501(6) must also be checked. A record that falls below these thresholds may still be considered under the general-conduct or risk limbs. Whether a person passes has to be assessed limb by limb against sections 501(6) and 501(7), and the answer can only be given for the individual case.
Can I stay in Australia while the review runs?
Whether you hold lawful status in Australia after a cancellation, whether a bridging visa is available and what conditions attach to it depend on your visa status and the timing, and must be confirmed separately at the same time as the review application or revocation request is lodged. The Department’s website states plainly that a person in Australia without a valid visa may face detention and removal.
How long will the ART take?
Onshore section 501 reviews are subject to the 84-day rule: the 84 days start on the day after the applicant is notified of the decision under review, the day of notification itself not counted, and if the Tribunal has not decided within that period, the decision under review is taken to be affirmed. The timetable is therefore tight: oral information supporting the case must be disclosed in a written statement given to the Minister’s representative at least 2 working days before the substantive hearing, and supporting documents generally have the same deadline, except documents provided under section 501G(2) or 500(6F). We cannot commit to a specific period.
After a character decision, start by establishing the decision type and the time limit
Our registered migration agents provide a free initial assessment to help you check who made the decision, the available pathways and the applicable time limits, so you can decide your next steps.
