Significance of a Section 501 Warning Letter

Posted on July 28, 2017 by admin

Section 501 Migration Act 1958: The Character Requirement

In recent times, the focus of the Department of Immigration and Border Protection has become much more stringent and forensic, as the focus has turned towards ensuring the safety of our borders. As such, every person who wishes to enter Australia must be of good character, to be assessed against the character requirements under Section 501 of the Migration Act 1958.

S 501 of the Migration Act 1958 sets out the character requirements for any person who wishes to enter or stay in Australia, inclusive of non-citizens, sponsors of visa applicants, and non-migrating family members seeking to enter or stay in Australia.[1] Under s 501, the Minister for Immigration has the power to refuse the grant of a visa if the Minister is satisfied that the person does not pass the character test. This test includes:[1]

  • Whether the person has a substantial criminal record:
    • This means whether they have been sentenced to 12 months or more in prison, or whether they have accumulated more than 12 months in prison as a result of multiple sentences. This is inclusive of a suspended sentence.
  • Whether the person has been convicted of an offence that was committed: while the person was in immigration detention, while the person was escaping immigration detention, or after escaping from immigration detention.
  • Whether the person is or has been a member of a group or organisation, or has associated with a person, group or organisation, which the Minister reasonably suspects of being involved in criminal conduct.
  • Whether the Minister reasonably suspects that the person has been involved in people smuggling, trafficking, genocide, a war crime, a crime against humanity, a crime involving torture or slavery, or a crime that is of serious international concern, whether or not the person has been convicted of such an offence.
  • Whether the person’s past or present criminal or general conduct is indicative that the person is not of good character.
  • Whether there is a risk that while the person is in Australia, they would:
    • Engage in criminal conduct
    • Harass, molest, intimidate or stalk another person
    • Vilify a segment of the Australian community
    • Incite discord in the Australian community or in a part of it
    • Be a danger to the Australian community or a part of it.
  • You have been convicted, found guilty or had a charge proven for, one or more sexually based offences involving a child
  • You are subject to an adverse security assessment by the Australian Security Intelligence Organisation
  • You are subject to an Interpol notice, from which it is reasonable to infer that you are a direct or indirect risk to the Australian community, or a segment of the Australian community.

Should any person entering Australia, regardless of the visa being applied for, fail the Character Requirement, the Immigration Minister or the Department for Immigration and Border Protection (DIBP) have the ability to refuse or cancel a visa application. Should a person be removed from Australia as a result of their visa being cancelled on character grounds, they will be permanently excluded from being granted another visa to re-enter Australia.

For more information on the Character Requirement under s 501 of the Migration Act, see here.

 

Section 501 Formal Advice Letters

As a result of Australia’s robust character assessment and changes, we have seen an increase in ‘Section 501 Formal Advice Letters’.

These formal advice letters serve not only as a warning to individuals who have been assessed by the Character Assessment Unit, however they have further repercussions. These include close monitoring by the Department of Immigration and Border Protection, and if you are found to engage in any other criminal activity inside or outside of Australia, the Department will take these offences very seriously which could lead to a refusal or cancellation under section 501 of the Migration Act.

Character issues are treated extremely seriously by the Department and it is critical that an applicant and sponsor seek professional assistance. The Department has a wide scope of power they can use to cancel or refuse a visa.

The family stream of lawyers at Immigration Solutions Lawyers last week successfully dealt with a case where the client’s application would have been refused because of the undisclosed character issues. There were compelling medical issues involved in the case. However a warning was issued instead of a visa refusal or cancellation.  This result was achieved through the submission of strong arguments in mitigation on behalf of the client.

This is just another situation where the Immigration Solutions Lawyers have been able to help to successfully acquire a visa for a client in difficult circumstances.

For further information on how Immigration Solutions Lawyers can help you in your Migration matter, contact us on 1300 428 472, or visit our website.

 

 

[1] Department of Immigration and Border Protection (DIBP). Fact Sheet – The Character Requirement. <https://www.border.gov.au/about/corporate/information/fact-sheets/79character>

[1] Migration Act 1958, s 501(6).