Character decisions under section 501 of the Migration Act are among the most serious in migration law. The deadlines are shorter than for other refusals, the process is more formal, and the outcome can mean removal from Australia. This guide explains the different types of character decisions and your options for each.
Key points
- If you receive a Notice of Intention to Consider Refusal or Cancellation, you generally have 28 days to respond.
- A delegate’s character refusal or cancellation for a person in Australia can be reviewed by the ART within 9 days, and this cannot be extended.
- A mandatory cancellation cannot be reviewed at the ART directly. You must ask for revocation within 28 days.
- Decisions made by the Minister personally cannot be reviewed by the ART.
- Get advice immediately. These deadlines are among the shortest in migration law.
Types of character decisions
| Decision | Your response | Time limit |
|---|---|---|
| Notice of intention to consider refusal or cancellation | Written response with evidence | Generally 28 days after deemed receipt |
| Delegate refuses or cancels under section 501, you are in Australia | Apply to the ART for review | 9 days after notification |
| Mandatory cancellation under section 501(3A) | Request revocation from the Department | 28 days after notification |
| Delegate refuses to revoke a mandatory cancellation | Apply to the ART for review | 9 days after notification |
| Minister personally refuses or cancels | No ART review. Court review on legal grounds only | Court time limits apply |
Responding to a notice of intention
This is often the best chance to change the outcome. A notice of intention to consider refusal or cancellation sets out the information the Department is relying on. Your response can explain the offending or conduct, what has changed since, your ties to Australia, the impact on family members and especially children, and any other relevant matters. Decision makers must follow the current Ministerial Direction on character decisions, which lists the matters to be weighed. See notice of intention to consider cancellation.
Mandatory cancellation and revocation
If you are serving a full time prison sentence and do not pass the character test because of a substantial criminal record or certain sexual offences involving a child, your visa is cancelled automatically. There is no notice beforehand. You can ask the Department to revoke the cancellation, but the request must be made within 28 days and that period cannot be extended. Information provided after the 28 days but before the decision must still be considered. See mandatory cancellations.
ART review of character decisions
- Only delegate decisions: the ART can review a delegate’s decision, not a decision made by the Minister personally.
- The 9 day limit: for a person in Australia, the application must be lodged within 9 days and include a copy of the decision notice and the documents given with it.
- The 84 day rule: if the ART does not decide within 84 days of notification, the decision is taken to be affirmed.
- A formal process: character reviews are heard in the General jurisdictional area, and the Department is usually represented by lawyers.
- Outside Australia: different time limits can apply where the person is not in Australia.
After the ART, or if the Minister decides
If the ART affirms the decision, or the Minister makes the decision personally, review is limited to the courts, which look only for legal error. The Minister can also set aside some favourable decisions in the national interest. See Federal Circuit and Family Court and visa cancellations.
What you should do now
- Act the day you receive a notice: deadlines are 28 days or as short as 9 days.
- Gather evidence early: court records, rehabilitation, family and employment evidence, and character references.
- Think about children and family: their interests are an important consideration.
- Get specialist help: character matters are complex and the stakes are high.
Frequently asked questions
How long do I have to appeal a section 501 cancellation?
If a delegate cancelled your visa and you are in Australia, you must apply to the ART within 9 days after notification. This cannot be extended.
Can I appeal a mandatory visa cancellation to the ART?
Not directly. You must first ask the Department to revoke it within 28 days. If a delegate refuses, that decision can be reviewed by the ART within 9 days.
Can the ART review a decision by the Minister personally?
No. Personal decisions of the Minister under section 501 cannot be reviewed by the ART. Court review on legal grounds may be possible.
How long do I have to respond to a notice of intention to cancel on character grounds?
Generally 28 days after you are taken to have received the notice.
What is the 84 day rule?
For character reviews of people in Australia, if the ART has not decided within 84 days of notification, the decision is taken to be affirmed.
Related guides
- Character requirements for Australian visas
- Mandatory cancellations
- Notice of intention to consider cancellation
- Visa cancellations
- ART review (formerly AAT)
- Satisfying the character test
Facing a character refusal or cancellation? Book a consultation with one of our registered migration agents.
This article is general information only and is not legal advice for your situation.
Visa Refused or Cancelled on Character Grounds: Review and Revocation Options
Skilled Visa Refused (189, 190, 491): Common Reasons and Your Review Options
Offshore Visa Refused: When You Can and Cannot Appeal
Reapply or Seek Review After a Visa Refusal?
ART Decisions Explained: Affirm, Set Aside or Remit