(8) For the purposes of the character test, if a person has been sentenced to periodic detention, the person’s term of imprisonment is taken to be equal to the number of days the person is required under that sentence to spend in detention.
Residential schemes or programs
(9) For the purposes of the character test, if a person has been convicted of an offence and the court orders the person to participate in:
(a) a residential drug rehabilitation scheme; or
(b) a residential program for the mentally ill;
the person is taken to have been sentenced to a term of imprisonment equal to the number of days the person is required to participate in the scheme or program.
Pardons etc.
(10) For the purposes of the character test, a sentence imposed on a person, or the conviction of a person for an offence, is to be disregarded if:
(a) the conviction concerned has been quashed or otherwise nullified; or
(b) both:
(i) the person has been pardoned in relation to the conviction concerned; and
(ii) the effect of that pardon is that the person is taken never to have been convicted of the offence.
Conduct amounting to harassment or molestation
(11) For the purposes of the character test, conduct may amount to harassment or molestation of a person even though:
(a) it does not involve violence, or threatened violence, to the person; or
(b) it consists only of damage, or threatened damage, to property belonging to, in the possession of, or used by, the person.
Limbs of character test do not limit each other
(11A) None of the limbs of the character test are intended to limit or otherwise affect each other.
Note: In addition, the power to cancel a visa because a person fails the character test is not limited by other powers in this Act to cancel the visa (see section 118).
Minister not required to determine whether membership or association is ongoing
(11B) The Minister is not required to determine whether a person’s membership of or association with an organisation is continuing or has concluded when making a decision for the purposes of paragraph (6A)(a) or (b).
Definitions
(12) In this section:
court includes a court martial or similar military tribunal.
imprisonment includes any form of punitive detention in a facility or institution.
sentence includes any form of determination of the punishment for an offence.
Note 1: Visa is defined by section 5 and includes, but is not limited to, a protection visa.
Note 2: For notification of decisions under subsection (1) or (2), see section 501G.
Note 3: For notification of decisions under subsection (3), see section 501C.
501A Refusal or cancellation of visa—setting aside and substitution of non‑adverse decision under subsection 501(1) or (2)
(1) This section applies if:
(a) a delegate of the Minister; or
(b) the ART;
makes a decision (the original decision):
(c) not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
(d) not to exercise the power conferred by subsection 501(2) to cancel a visa that has been granted to a person;
whether or not the person satisfies the delegate or the ART that the person passes the character test and whether or not the delegate or the ART reasonably suspects that the person does not pass the character test.
Action by Minister—natural justice applies
(2) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the person does not satisfy the Minister that the person passes the character test; and
(e) the Minister is satisfied that the refusal or cancellation is in the national interest.
Action by Minister—natural justice does not apply
(3) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the Minister is satisfied that the refusal or cancellation is in the national interest.
(4) The rules of natural justice, and the code of procedure set out in Subdivision AB of Division 3 of Part 2, do not apply to a decision under subsection (3).
(4A) Under subsection (2) or (3), the Minister may cancel a visa that has been granted to a person even if the original decision under subsection (1) was a decision not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person.
Minister’s exercise of power
(5) The power under subsection (2) or (3) may only be exercised by the Minister personally.
(6) The Minister does not have a duty to consider whether to exercise the power under subsection (2) or (3) in respect of the original decision, whether or not the Minister is requested to do so, or in any other circumstances.
Decision not reviewable by application under Part 5
(7) A decision under subsection (2) or (3) is not reviewable by application under Part 5.
Note 1: For notification of decisions under subsection (2), see section 501G.
Note 2: For notification of decisions under subsection (3), see section 501C.
501B Refusal or cancellation of visa—setting aside and substitution of adverse decision under subsection 501(1) or (2)
(1) This section applies if a delegate of the Minister makes a decision (the original decision) under subsection 501(1) or (2) to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.
(2) The Minister may set aside the original decision and:
(a) refuse to grant a visa to the person; or
(b) cancel a visa that has been granted to the person;
if:
(c) the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
(d) the person does not satisfy the Minister that the person passes the character test; and
(e) the Minister is satisfied that the refusal or cancellation is in the national interest.
(3) The power under subsection (2) may only be exercised by the Minister personally.
(4) A decision under subsection (2) is not reviewable by application under Part 5.
(5) To avoid doubt, the Minister may set aside the original decision in accordance with subsection (2) even if the original decision is the subject of an application for review by the ART.
Note: For notification of decisions under this section, see section 501G.
501BA Cancellation of visa—setting aside and substitution of non‑adverse decision under section 501CA
(1) This section applies if:
(a) a delegate of the Minister; or
(b) the ART;
makes a decision under section 501CA (the original decision) to revoke a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Action by Minister—natural justice does not apply
(2) The Minister may set aside the original decision and cancel a visa that has been granted to the person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph 501(6)(a), on the basis of paragraph 501(7)(a), (b) or (c); or
(ii) paragraph 501(6)(e); and
(b) the Minister is satisfied that the cancellation is in the national interest.
(3) The rules of natural justice do not apply to a decision under subsection (2).
Minister’s exercise of power
(4) The power under subsection (2) may only be exercised by the Minister personally.
Decision not reviewable by application under Part 5
(5) A decision under subsection (2) is not reviewable by application under Part 5.
Note: For notification of decisions under subsection (2), see section 501G.
501C Refusal or cancellation of visa—revocation of decision under subsection 501(3) or 501A(3)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3) or 501A(3) to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) except in a case where the person is not entitled to make representations about revocation of the original decision (see subsection (10))—invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(3A) If the notice under subsection (3) relates to an original decision to cancel a visa, the notice must be given in the prescribed way.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the person satisfies the Minister that the person passes the character test (as defined by section 501).
(5) The power under subsection (4) may only be exercised by the Minister personally.
(6) If the Minister revokes the original decision, the original decision is taken not to have been made. This subsection has effect subject to subsection (7).
(7) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(8) If the Minister makes a decision (the subsequent decision) to revoke, or not to revoke, the original decision, the Minister must cause notice of the making of the subsequent decision to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the subsequent decision was made.
(9) If the person does not make representations in accordance with the invitation, the Minister must cause notice of that fact to be laid before each House of the Parliament within 15 sitting days of that House after the last day on which the representations could have been made.
(10) The regulations may provide that, for the purposes of this section:
(a) a person; or
(b) a person included in a specified class of persons;
is not entitled to make representations about revocation of an original decision unless the person is a detainee.
(11) A decision not to exercise the power conferred by subsection (4) is not reviewable by application under Part 5.
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a) would be the reason, or a part of the reason, for making the original decision; and
(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a) give the person:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(3A) The notice under subsection (3) must be given in the prescribed way.
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
(6) Any detention of the person that occurred during any part of the period:
(a) beginning when the original decision was made; and
(b) ending at the time of the revocation of the original decision;
is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.
(7) A decision not to exercise the power conferred by subsection (4) is not reviewable by application under Part 5.
Note: For notification of decisions under subsection (4) to not revoke, see section 501G.
501D Refusal or cancellation of visa—method of satisfying Minister that person passes the character test
The regulations may provide that, in determining for the purposes of section 501, 501A or 501B, whether:
(a) a person; or
(b) a person included in a specified class of persons;
satisfies the Minister that the person passes the character test (as defined by section 501), any information or material submitted by or on behalf of the person must not be considered by the Minister unless the information or material is submitted within the period, and in the manner, ascertained in accordance with the regulations.
501E Refusal or cancellation of visa—prohibition on applying for other visas
(1) A person is not allowed to make an application for a visa, or have an application for a visa made on the person’s behalf, at a particular time (the application time) that occurs during a period throughout which the person is in the migration zone if:
(a) at an earlier time during that period, the Minister made a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to the person or to cancel a visa that has been granted to the person; and
(b) the decision was neither set aside nor revoked before the application time.
(1A) In relation to the Minister’s decision to refuse to grant a visa to the person, as mentioned in paragraph (1)(a), it does not matter whether:
(a) the application for the visa was made on the person’s behalf; or
(b) the person knew about, or understood the nature of, the application for the visa due to:
(i) any mental impairment; or
(ii) the fact that the person was, at the time the application was made, a minor.
(1B) In paragraph (1)(a) and subsection (1A), a reference to a refusal to grant a visa, or to the cancellation of a visa, includes a reference to such a refusal or cancellation in relation to a visa for which an application is taken to have been made by the operation of this Act or a regulation.
(2) Subsection (1) does not prevent a person, at the application time, from making an application for:
(a) a protection visa; or
(b) a visa specified in the regulations for the purposes of this subsection.
Note: The person may however be prevented from applying for a protection visa because of section 48A.
(3) Subsection (1) does not prevent a person, at the application time, from making an application for a visa if, before the application time, the Minister had, acting personally, granted a permanent visa to the person.
(4) Subsection (1) does not prevent a person, at the application time, from making an application for a visa if:
(a) before the application time, the person was granted a visa of a kind referred to in subsection (2) or (3); and
(b) the person would, but for the operation of subsection (2) or (3), have been prevented from applying for that visa.
501F Refusal or cancellation of visa—refusal of other visa applications and cancellation of other visas
(1) This section applies if the Minister makes a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.
(2) If:
(a) the person has made another visa application that has neither been granted nor refused; and
(b) the visa applied for is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to refuse that other application.
(3) If:
(a) the person holds another visa; and
(b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.
(4) If the decision referred to in subsection (1) is set aside or revoked, the decision that the Minister is taken to have made under subsection (2) or (3) is also set aside or revoked, as the case may be.
(5) A decision that the Minister is taken to have made under subsection (2) or (3) is not reviewable by application under Part 5.
Note: For notification of decisions under this section, see section 501G.
501G Refusal or cancellation of visa—notification of decision
(1) If a decision is made under subsection 501(1) or (2) or 501A(2) or section 501B, 501BA, 501CA or 501F to:
(a) refuse to grant a visa to a person; or
(b) cancel a visa that has been granted to a person; or
(ba) not revoke a decision to cancel a visa that has been granted to a person;
the Minister must give the person a written notice that:
(c) sets out the decision; and
(d) specifies the provision under which the decision was made and sets out the effect of that provision; and
(e) sets out the reasons (other than non‑disclosable information) for the decision; and