LML6005: Australian Citizenship and Visa Cancellation Under Section 501: A Legal Case Analysis

Based on the given scenario, Perta who is on a 189 Visa, satisfies the general residency requirement for Citizenship under the General residency requirement of Australian Citizenship Act. The general requirement for anyone to become an Australian citizen is that the person should be at least aged 18 or over at the time the person made the application, and is a permanent resident.[1] A person is considered to be permanent resident if the person in Australia at that time and holds a permanent visa at that time.[2] Another important provision that Petra meets under the general eligibility criteria is that the applicant has to be of good character at the time of the Minister’s decision on the application.[3]

As this provision require the applicant to be present in Australia for a period of 4 years, immediately before the application.[4] Must not have been presented as an unlawful non-citizen at any time during that period. Also, must have been a permanent resident for the 12-month period immediately before the application.[5] On the expiry of her student visa, and while waiting for her visa subclass 482 Visa, Petra would have been granted a Bridging Visa A. Applicant must be in Australia and not in immigration clearance.[6] The applicant has made a valid visa application for a substantive visa that has not been finally determined.[7]

The Bridging Visa A, wouldn’t be granted automatically, instead would need to be applied for. As The applicant has made a valid visa application, in Australia for a substantive visa of a kind that can be granted if the Applicant is in Australia and the application has not been finally determined.[8] Also, the applicant held a substantive visa at the time the application was made, which in the case of Petra she held a substantive visa of subclass 600.[9] As per the section 13, a non-citizen in the migration zone who holds a vias that is in effect is a lawful non-citizen.[10] So Petra held Bridging Visa A, because of which she maintained her legal status in Australia. As Petra applied for her Temporary Skill shortage Visa in February 2021 while her student visa was still valid, and her bridging visa was applied later to maintain her legal status while waiting for the outcome of her subclass 482 Visa. Petra later applied for her subclass 189 visa in July 2021 while that BVA was in effect, which is also 1 month prior to refusal of her 482 visas. As bridging Visa A maintained her lawful legal status, Petra was never an unlawful non-citizen, and this period does count towards the residency requirement.

Question 2

If a Minister has to cancel her visa, based on the fact that Petra will not pass the character test, the Minister may cancel a visa of a person that has been granted to a person if the Minister reasonably suspects that the person does not pass the Character test.[11] For any person who believe to have substantial criminal record, is likely to not pass the character test.[12] As for this reason it is important to understand and know what the substantial criminal record is. If a person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 month or more is likely to be considered as having substantial criminal record.[13] Which in the case of Petra, she was sentenced to jail for 12 months in total, however because of her good behaviour she was released earlier. Now having released from jail before 12 months, would she still be classified as a person having substantial criminal record. As per the policy, the fact that a non-citizen may become eligible for release before they have served the whole of their sentence is irrelevant in determining whether that person has a substantial criminal record.[14] So even if Petra got released from jail, prior to completing her 12 months in jail, she would still be classified as someone having substantial criminal record. The other alternate provision that the Minister can use to cancel Petra visa would be under the provision of s501(3A), as it states that the Minister is satisfied that the person does not pass the Character test because of the person having substantial criminal record based on serving 12 months in jail.[15]

What steps can Petra take in response to a proposed visa cancellation?

In case if the Minister has decided or is considering cancelling Petra visa under section 501(1) or under section 501(2), and the delegate has the discretion to refuse or cancel the visa on character grounds, then the assessing officer must for reasonable grounds issue a NOICC or NOICR.[16]

Before cancelling the Visa under 501(2), the officer must as a matter of law, give the client a NOICC. When issuing the NOICC, it is important that NOICC should only be issued after the client has met the liability thresholds for possible visa cancellation, the case officer has decided to pursue possible visa cancellation and has ensured all reasonable steps.[17] When issuing a NOICC, it is important that the NOICC should include the details of the visa that is being considered for cancellation, the grounds on which the possible cancellation is based along with the evidence of information that the department has to support a potential cancellation.[18]

In case if Petra receives a Notice of Intention to Consider Cancellation (NOICC), under section501 of the Migration Act, as visa holder she should take the following steps:

1. Review the NOICC immediately: Petra should and must review the reasons stated in the NOICC, and prepare a reasonable response to the NOICC within 28 days from the receipt. As under regulation 2.53, any response from the client if they pass the character test or not should be received by the Minister within 28 calendar days after the date of deemed receipt of NOICC.[19] For section 501D of the Act, any information or Material must be in writing and received by the Minister or Immigration within 28 days after the person in invited by the Minister to submit information.[20]
2. As Petra would have 28 days to reply to the Minister, it is important that Petra should and must collect / gather as many documents as possible and evidence that she can submit to the Minister for review. The documents that Petra can gather and submit can be: Character reference from her religious group that she’s running. Any evidence of her ties with the community that she’s part of. Medical reports of her previous miscarriage and her current pregnancy. Most importantly the evidence of her victimization that can be provided in the form of the fact that doctor got subsequent charges. Also, she can get a letter from Doctor Wife who got to know the reality and played a role in putting the doctor behind bar.
3. It is important that Petra draft a detailed response addressing the factors that are outlined in the Ministerial Direction 110, that help decision makers in the Character cases.

Few important points to be included in the response:

1. Acknowledge the seriousness of the offense but emphasize on the fact that Petra was not the actual person who committed those offense, instead it was the Doctor who committed it.
2. Petra can explain why she took the blame on her, because she was threatened by the Doctor because of his citizenship status and at the same time Doctor had promised Petra that he would look after her for the rest of her life.

• Petra can also include that Doctor got charged with unlawful drug distribution after his wife rallied the community against him. This clearly showing who the real culprit was, and Petra was only staged in it.

1. Lastly Petra can also include the fact that she now runs a religious community group bringing different religious communities together and actively support her community in the regional Australia. This not only showing her connection with the local Australian community but how she is an integral part of it.

Submission:

Submission Regarding Notice of Intention to Consider Cancellation of Permanent Visa (Subclass 189)

Re.

Date of Birth: [14/01/2001]

Visa Grant Number: [XV12151511]

File Reference: [129013231]

Dear Case Officer,

I am writing on behalf of my client Petra, in response to the NOICC Notice of Intention to consider Cancellation of her Skilled Independent subclass 189 under section 501 of the Migration Act 1958. As Petra has been sentenced to two combined terms of 12 months of imprisonment Petra is considered to have substantial Criminal record.[21] If the Minster believe that the person represent a danger to the Australian Community or to a segment of that community, whether by way of being liable to become involved in activities that are disruptive or in violence threatening harm to that community.[22] The submission outlines the reason why my Client Petra visa should not be cancelled, despite of her being jailed for 12 months in total.

BACKGROUND:

Petra arrived in Australia in 2018 on student visa, to pursue her Master of Nursing degree and she ended up completing her degree. She then later applied for Temporaray skill shortage Visa 482, as she had an approved sponsor, but her visa got refused as the sponsor got his sponsorship cancelled by Fair Work Australia. While being on a Bridging Visa A, Petra also lodged her Skilled independent visa 189 that she was granted later on and she’s been on that visa ever since.

Petra started working in regional Victoria for a local hospital, where she was enjoying her time. There while working she met a newly joined Doctor who also happened to be from Slovenia, and they later got into relationship. Petra got to know about the Doctor that how he is involved in selling illegal drugs and confronted him as well, to which she was threatened and even got hit by the doctor but she didn’t complain about it out of shame. She than later got convicted and got jailed for 12 months in total, however got released from the jail earlier than 12 months because of her good behaviour.

Criminal Conviction and Mitigative Factors

There’s no doubt that Petra was convicted and was sentenced to a total of 12 months’ imprisonment for two concurrent sentences of six months each and we acknowledge this. However, we also believe that there are other various significant mitigating factors that we respectfully request you to kindly consider:

Wasn’t Involved: Petra was not the one who was involved in selling hospital medication illegally within the local community. She instead, confronted the doctor who was involved in selling those medications.

Good Behaviour: While serving the 12 months’ imprisonment, Petra got release earlier because of her good behaviour in jail.

Religious Group: Ever since Petra got release from prison, Petra now runs a religious community group bringing different religious communities together and actively supports her local community in regional Australia.

Response to Character Concern:

Petra, reflecting her time in Prison, acknowledges the hardships but also got a new purpose now where she is running a religious group in regional Victoria. All she now wants is to secure a safe and stable future in Australia for herself and for her unborn child.

Consideration of Ministerial Direction 110

When decision maker deciding on either to refuse of cancel a visa, under section 501, various factor should and must be considered. The safety of the Australian community is the highest priority for the Australian government.[23]

Positive Points

For decision maker it is important to consider the seriousness of the non-citizen conduct to date. In the case of Petra, she got convicted for a crime she never committed; besides she got release earlier from prison because of her good behaviour.

That was the only crime for which she was convicted for, however she didn’t commit that crime. The decision maker should consider the frequency of the non-citizen commit further offences or whether there is any trend of increasing seriousness (Direction 110).[24]

For the decision maker it is also important to give regard to how long the non-citizen has resided in Australia. Giving less weight to where the non-citizen began offending soon after arriving in Australia, and more weight should be given to the time non-citizen has spent contributing positively to the Australian Community, which in the case of Petra, she has served in a local hospital in regional Victoria as a Nurse.[25]

Legal Framework

We request that our client Ms. Petra case to be considered considering the following legal principles:

In the case of Brown v Minister for Home Affairs [2018] FCA 1722, it was noticed that Mr. Brown visa was cancelled on grounds of the character test. However later on hearing the case in Court the Honour quashed the respondents decision and released Mr. Brown.[26]

Conclusion and Request

Based on the information shared above, we therefore request you to exercise the discretion under s501(1) of the Migration Act 1958 to not to cancel Petra visa. As we strongly believe that allowing Petra to stay in Australia and continue to apply for her Citizenship would have a huge positive impact on her and her unborn child in Australia.

MARN – 1231512 Ash

4 Minister Personal Power

Yes, the Minister can use his personal power to refuse/cancel a visa. Under s501(3) The Minister may cancel a visa that has been granted to a person, if the Minister reasonably suspect that the person does not pass the character test and Minister is satisfied that the refusal or cancellation is in the national interest.[27] The same power can be use by the Minister as mentioned under the provision of s501A.[28] In case if Petra receive a NOICC for her visa, she can make representation for revocation under s501C. The Minister can invite the person to make representation to the Minister, within the period and in the manner ascertained in accordance with the regulation.[29] The Minister may revoke the original decision if the person makes representations in accordance with the invitation and the person satisfies the Minister that the person passes the Character test.[30]

Bibliography:

1. Migration Regulations 1994 (Cth)
2. Migration Act 1958 (Cth)
3. Brown v Minister for Home Affairs [2018] FCA 1722 (15 November 2018)
4. Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 110: Visa Refusals and Cancellations Under Section 501 and Revocation of a Mandatory Cancellation Under Section 501 (7^th Sep 2025) para 5.2.2
5. Department of Home Affairs (Cth), Procedures Advice Manual 3: Substantial Criminal Record – section 501 The Character Test
6. Department of Home Affairs (Cth), Procedures Advice Manual 3: Notice of Intention to consider Cancellation of Visa on Character Grounds (NOICC) – s501(2)
7. Department of Home Affairs (Cth), Procedures Advice Manual 3: Concurrent Requirements for NOICC – s501(2

[1] Australian Citizenship Act 2007 (Cth) s21(2)(a)(b)(i)

[2] Australian Citizenship Act 2007 (Cth) s5(1)(a)

[3] Australian Citizenship Act 2007 (Cth) s21(2)(h)

[4] Australian Citizenship Act 2007 (Cth) s22(1)(a)

[5] Australian Citizenship Act 2007 (Cth) s22(1)(b)(c)

[6] Migration Regulations 1994 (Cth) Sch1 item 1301(3)(b)

[7] Migration Regulations 1994 (Cth) Sch1 item 1301(3)(c)(i)

[8] Migration Regulations 1994 (Cth) Sch2 010.211(2)(a)(b)

[9] Migration Regulations 1994 (Cth) Sch2 010.211(2)(c)(d)(i)

[10] Migration Act 1958 (Cth) s13(1)

[11] Migration Act 1958 (Cth) s50(2)(a)

[12] Migration Act 1958 (Cth) s501(6)(a)

[13] Migration Act 1958 (Cth) s501(7)(c)(d)

[14] Department of Home Affairs (Cth), Procedures Advice Manual 3: Substantial Criminal Record – section 501 The Character Test [3.3.3]

[15] Migration Act 1958 (Cth) s501(3A)(a)(i)

[16] Department of Home Affairs (Cth), Procedures Advice Manual 3: Section 501: The Character Test -  whether to provide Natural Justice [3.3.4]

[17] Department of Home Affairs (Cth), Procedures Advice Manual 3: Notice of Intention to consider Cancellation of Visa on Character Grounds (NOICC) – s501(2) [3.2.2]

[18] Department of Home Affairs (Cth), Procedures Advice Manual 3: Concurrent Requirements for NOICC – s501(2) [3.9.2.2]

[19] Department of Home Affairs (Cth), Procedures Advice Manual 3: [3.3.9.2]

[20] Migration Regulations 1994 (Cth) Reg 2.53(1)(a)(b)

[21] Migration Act 1958 (Cth) s501(7)(d)

[22] Migration Act 1958 (Cth) s501(6)(d)(v)

[23] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 110: Visa Refusals and Cancellations Under Section 501 and Revocation of a Mandatory Cancellation Under Section 501 (7^th Sep 2025) para 5.2.2

[24] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 110: Visa Refusals and Cancellations Under Section 501 and Revocation of a Mandatory Cancellation Under Section 501 (7^th Sep 2025) para 8.1.1

[25] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 110: Visa Refusals and Cancellations Under Section 501 and Revocation of a Mandatory Cancellation Under Section 501 (7^th Sep 2025) para 8.3.2

[26] Brown v Minister for Home Affairs [2018] FCA 1722 (15 November 2018)

[27] Migration Act 1958 (Cth) s501(3)(b)(c)(d)

[28] Migration Act 1958 (Cth) s501A(2)(b)(c)(d)(e)

[29] Migration Act 1958 (Cth) s501C(3)(a)(b)

[30] Migration Act 1958 (Cth) s501C(4)(a)(b)