Visa Cancellation on Character Grounds: Section 501 in 2026

If your visa is cancelled or refused on character grounds, the decision rests on section 501 of the Migration Act 1958, and your response is almost always time-critical. For a mandatory cancellation you generally have only 28 days to ask for the decision to be revoked, and that period is treated as strict. This article explains how visa cancellation on character grounds actually works in 2026, what the character test requires, how the discretion is exercised, and what you should do the moment a notice arrives.

What the character test is under section 501

The character test is set out in section 501(6) of the Migration Act 1958. You do not “pass” or “fail” a single test. Instead, the law lists a series of ways a person can be found not to pass, and any one of them is enough.

The most common trigger is a substantial criminal record. Under section 501(7), that includes a sentence of imprisonment of 12 months or more, two or more sentences that together add up to 12 months or more, a life sentence, or a term of detention in an institution after being found guilty of an offence but unfit to plead. Other limbs cover association with people involved in criminal conduct, a risk assessed against future conduct, past and present general conduct, and convictions for certain offences committed in immigration detention.

The practical point is that the threshold is lower than many people assume. Several short sentences that individually seem minor can be aggregated to reach 12 months. A suspended sentence still counts as a sentence for this purpose.

Discretionary refusal or cancellation, and mandatory cancellation

There are two very different machines running here, and confusing them is a costly mistake.

The first is the discretionary power. Under section 501(1) and section 501(2), a delegate of the Minister may refuse or cancel a visa if the person does not pass the character test. “May” is the operative word. The decision-maker weighs the case and can decide either way, and you are given a chance to respond before the decision is made.

The second is mandatory cancellation under section 501(3A). If you are serving a full-time sentence of imprisonment and you have a substantial criminal record based on a 12-month sentence, or you have been convicted of a sexually based offence involving a child, the delegate must cancel the visa. There is no discretion at that stage and no prior warning. The cancellation happens, and only then does a limited process open up for you to seek to have it undone.

The 28-day revocation deadline you cannot afford to miss

After a mandatory cancellation, section 501CA allows you to make representations asking the Minister to revoke the decision. This is your central opportunity to put your full case, and the window is short.

You generally have 28 days from the day you are taken to have received the notice of cancellation and the particulars relied on. That period is fixed by the Migration Regulations 1994, and it is not the kind of deadline officers can stretch to accommodate a difficult situation.

Courts have consistently treated statutory time limits of this character as jurisdictional. In Khabra v Minister for Immigration and Border Protection [2015] FCA 1405, the Federal Court confirmed that a statutory time limit of this kind is jurisdictional and cannot be extended, however sympathetic the circumstances. In plain terms, if the representations are late, the decision-maker may have no power to consider them at all, regardless of how strong your reasons are. That is why the first task, before assembling evidence, is to fix the exact date the clock started and count forward.

How the discretion is actually exercised

Where discretion exists, whether at the delegate stage under section 501(1) or when the Minister considers revocation under section 501CA, the decision is guided by the ministerial direction currently in force under section 499 of the Migration Act. That direction sets out the primary and other considerations a decision-maker must take into account, including the protection of the Australian community, the seriousness of the conduct, the best interests of any affected children in Australia, the expectations of the Australian community, and the strength, nature and duration of your ties to Australia. You can read the Department’s overview of the character requirements on the Department of Home Affairs website.

Two features of this discretion matter for anyone preparing a case.

First, the discretion is genuinely wide, and that cuts both ways. In Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11, the Full Court held that the discretion is wide and that a decision is not legally unreasonable merely because another judge might have decided it differently. For you, that means a court will rarely overturn a character decision simply because the outcome seems harsh. The place to win is in the evidence and submissions put to the decision-maker, not in a later legal challenge hoping a judge disagrees on the merits.

Second, strong, specific, and well-documented evidence on each relevant consideration carries far more weight than general assertions. Rehabilitation, employment, family circumstances, the effect on Australian children, and the length and depth of your community ties all need to be proven, not just claimed.

Procedural fairness: you must get a real chance to respond

Character decisions are subject to procedural fairness. This means you are entitled to know the issues that concern the decision-maker and to be given a genuine opportunity to answer them.

The High Court addressed this in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63, holding that where a tribunal’s decision turns on specific issues, the applicant must be given a genuine chance to address those issues. Applied to the character context, if a decision-maker intends to rely on a particular concern, for example a specific incident or an adverse view about your prospects of reoffending, you should have the chance to deal with it. If a decision was made on a basis you were never invited to answer, that may be a legal error you can raise on review.

Merits review and judicial review are not the same thing

Where you can go next depends on who made the decision.

If a delegate of the Minister made the decision, or refused to revoke a mandatory cancellation, you can often seek merits review at the Administrative Review Tribunal, which considers the case afresh and can substitute its own decision. Time limits for this are short, frequently only nine days for certain cancellation decisions, so speed is essential. You can confirm current review rights and timeframes at the Administrative Review Tribunal website.

If the Minister personally made the decision, for instance under the personal powers in section 501A or section 501B, merits review is generally not available. Your only avenue is judicial review in the Federal Court or Federal Circuit and Family Court, which examines whether the decision was made lawfully, not whether it was the best decision. That distinction, as Stretton makes clear, is a high bar.

What to do the moment a character notice arrives

Do not wait to gather documents before getting advice. The single most damaging error is losing the deadline while assembling evidence.

Record the date you received the notice and identify the exact power used, whether it is a discretionary decision under section 501 or a mandatory cancellation under section 501(3A). Read the particulars, the documents and information the decision-maker relied on, because those define the case you must answer. Then move immediately to prepare representations or a review application that address each consideration in the ministerial direction with specific evidence.

Character cancellation can affect the holder of any visa, from an employer sponsored worker to a partner or skilled migrant, and the consequences reach the whole family. If you hold an employer sponsored visa or a partner visa and have received a character notice or fear one is coming, the timing of your response can determine whether you keep your visa at all.

Visa Plan Lawyers acts for people facing refusal and cancellation on character grounds and prepares representations and review applications under tight deadlines. If you have received a notice, contact our team without delay through our employer sponsored visas service page or by getting in touch directly, because in character matters days genuinely matter.