Section 501: The hidden trap on the path of Australian citizenship

The path to becoming an Australian citizen as a migrant is increasingly difficult. At the same time, many temporary residents might reasonably be aware of policy changes on their prospective visas, very few have the time and technical knowledge to understand the complex and ever-changing landscape in the Migration Act. Section 501 is one of the most potent gatekeeping clauses in the Migration Act. It provides the Minister of Immigration to cancel visas for non-citizen and temporary residences on “Bad Character” ground.

Let us begin by introducing that the Migration Act operates quite differently to all order legal principles known in Australia, such that:

  • Unlike Criminal law, the presumption of innocence does not apply in S501’s Character test. The onus of proof is often reversed, and the applicant must demonstrate they are of good character when confronted by S501.
  • It does not state any limitation period, as the character check is designed to be intrusive, and it can go retrospectively to the applicant’s lifetime of records.
  • Not only does the character test go retrospectively, it also allows the minster to cancel visa based on “forecasts”. For example, association with known criminals might attract a bad character status even if the applicant is not involved in a crime.

What S501 means in reality:

In short, if you are not a permanent resident or a citizen of Australia, the Minister of Immigration can revoke your stay in Australia under the Bad Character grounds for offences that might appear to be trivial to permanent resident and citizens of Australia, some of the examples include:

  • Traffic offences: including offences that do not attract demerit points or even parking violations.
  • Summary offences: Even if the accused is sentenced with intensive correction order or good behaviour bond. For example, if an applicant is involved in a common assault with no injury to any party and they’ve pleaded guilty to the charge, that alone is sufficient to attract the “bad character” grounds.
  • Failure to declare criminal record: Contrary to popular belief, the spent conviction clause does not apply to migration applications. Applicants must report any criminal offences in their Visa application even if the conviction is purged. This principle extends to all details of the application. Incorrect or misleading information reported on an applicant’s Visa application might breach PIC4020, which requires all applicants to provide accurate information.
  • Substantial Criminal Record – A substantial criminal record is defined as an accumulated sentence time of 12 months or more. The phrase can be misleading as a minor sentence in Criminal law can be regarded to be substantial under the Migration Act; a non-exhaustive example of what considers to be a Substantial Criminal Record includes:
    1. A sentence of 12 months or more, or
    2. Multiple sentences with the accumulative sentence time of 12 months or more.

It should be aware that the character test will only consider the sentencing time in the judgement and not about the actual time the applicant spent in prison. It could mean that if a person received a 12 months sentence but ultimately received probation, it is still considered as a 12 months sentence. Therefore, the applicant does not necessarily have to be engaged in a serious criminal offence to breach their character requirement.

For example, suppose an applicant is found guilty of driving under the influence of illegal substances and attract a sentence of 12 months or more and receives probation. In that case, the applicant will automatically be classified as Bad Character under S501 and be deported.

Appealing the Decision:

The most common and cost-effective way to appeal an S501 decision is through the Administrative Appeal Tribunal (AAT). If the applicant decides to appeal, AAT offers an independent review based on the applicant’s merit, and they can remit or set aside the original decision.

However, the Minister of Immigration has the final say. Although this is uncommon, the minister has the ultimate power to overrule or prevent an applicant from appealing through AAT, meaning the applicant must leave the country with no avenue of appeal unless they challenge the High Court decision.

The takeaway:

As mentioned above, the character requirement for short term Visa or temporary resident in Australia can be strict, these Visa holders need to be aware of the standard of behaviour that Australia is expected from them. Non-citizens of Australia can be removed from Australia on bad character grounds and have a limited avenue of appeal. Therefore, a successful appeal is paramount as the practical consequence of being removed in Australia through S501 is that they can never be returned to Australia.

The time limitation to raise an appeal is usually within 28 calendar days.

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