Visa cancellation and the character test (s501): what you need to know
Current as at 3 July 2026. This is general information about the character provisions of the Migration Act 1958, not legal advice. Character matters are high-stakes and move fast - the revocation window is 28 days and cannot be assumed to be extendable. Get advice immediately if a cancellation notice has been issued.
Few areas of migration law carry higher stakes than the character provisions. Under section 501 of the Migration Act 1958, a visa can be refused or cancelled because the holder does not pass the “character test” - and in some cases the cancellation is automatic, taking effect before the person has said a word in their defence. This guide explains the framework in plain English: what the character test is, when cancellation is mandatory, the all-important 28-day revocation window, and what the High Court’s 2026 decision in EGH19 v Commonwealth signals about the limits of the powers that follow.
The character test
A person fails the character test in a number of situations set out in s 501. The most common is having a “substantial criminal record”. Broadly, that is defined to include being sentenced to a term of imprisonment of 12 months or more - and separate sentences that add up to 12 months or more can count, even where they were served concurrently. Other grounds include a sentence of imprisonment for certain offences, association with people involved in criminal conduct, and an assessment that the person represents a risk to the Australian community.
The important point is that the character test is a legal threshold, not a moral judgment about a whole life. Whether someone fails it turns on specific, defined criteria - which is exactly why precise legal analysis of the record matters.
Two kinds of cancellation
| Discretionary cancellation (s 501(2)) | Mandatory cancellation (s 501(3A)) | |
|---|---|---|
| When it applies | Where a delegate or the Minister reasonably suspects the person fails the character test and decides to cancel | Where the person has a substantial criminal record (or a conviction for a sexually based offence involving a child) and is serving a full-time sentence of imprisonment |
| Warning first? | Usually yes - a Notice of Intention to Consider Cancellation (NOICC) inviting a response before any decision | No - the visa is cancelled first, and the person is notified afterwards |
| The response mechanism | Make submissions in answer to the NOICC before the decision | Request revocation of the cancellation under s 501CA within 28 days |
The distinction is critical. With discretionary cancellation you generally get a chance to be heard before the decision. With mandatory cancellation, the visa is already gone when you find out - and your remedy is to ask for the decision to be revoked.
The 28-day revocation window (s 501CA)
After a mandatory cancellation, the affected person can request revocation of the cancellation under s 501CA. The request must generally be made within 28 days of being notified. This is the single most important deadline in a character matter, and it should be treated as immovable. A revocation request is where the person puts their case: representations addressing the character test, the risk to the community, and the extensive discretionary considerations the decision-maker must weigh.
If revocation is refused by a delegate, there may be a pathway to seek merits review at the Administrative Review Tribunal (ART); if the Minister personally makes the decision, review options are narrower and the focus may shift to judicial review in the courts. Which pathway applies depends entirely on who made the decision and how - one of many reasons early advice is essential.
What decision-makers weigh
Even where the character test is failed, cancellation and revocation decisions involve broad discretion guided by Ministerial Direction. The kinds of considerations typically in play include:
- Protection of the Australian community - the nature and seriousness of the conduct, and the risk of reoffending.
- The best interests of any children affected by the decision.
- Strength, nature and duration of ties to Australia - length of residence, family, employment and community links.
- The impact on victims and expectations of the Australian community.
- Legal consequences of the decision, including the prospect of indefinite immigration detention where removal is not practicable.
Building representations that engage each relevant consideration with evidence - not assertion - is the substance of a character matter.
EGH19 v Commonwealth [2026] HCA 7 - why it matters
On 18 March 2026 the High Court delivered EGH19 v Commonwealth [2026] HCA 7. The Court held that certain punitive conditions imposed on Bridging R (subclass 070) visas - home detention or curfew and electronic monitoring - were invalid, because they exceeded the regulation-making power when read subject to Chapter III of the Constitution, under which punishment is exclusively a matter for the courts. It was the second decision in this line, following YBFZ in 2024.
What does that mean for a character client? EGH19 does not change the character test or the cancellation framework. What it signals is that the conditions and consequences that flow from character decisions are not beyond legal challenge - the validity of conditions imposed on people released from detention is now squarely a live issue. For anyone affected by bridging visa conditions in the character space, condition-validity arguments have become central. Our companion article on EGH19 and bridging visa conditions explains the decision in full.
What to do if a cancellation notice arrives
- Note the date and the deadline. If it is a mandatory cancellation, the 28-day revocation clock is already running.
- Do not respond off the cuff. Anything said or written can shape the character assessment. Representations should be prepared carefully.
- Gather the record. The full criminal history, sentencing remarks, evidence of rehabilitation, and material on ties to Australia and any children affected.
- Get advice immediately. The pathway (revocation, ART review, or judicial review) depends on who made the decision - and the wrong assumption can cost the only available remedy.
Frequently asked questions
Does a single conviction always mean cancellation?
No. Cancellation depends on whether the character test is failed and, for discretionary decisions, on the exercise of discretion. A “substantial criminal record” turns on the length of the sentence (broadly, 12 months or more), not simply the fact of a conviction - and even where the test is failed, extensive discretionary considerations are weighed before a final decision.
Can a permanent resident lose their visa on character grounds?
Yes. The character provisions apply to visa holders generally, including permanent residents. Long residence and strong ties to Australia are important considerations in the decision, but they do not put a permanent visa beyond the reach of s 501.
What is the difference between the NOICC and the revocation request?
A NOICC (Notice of Intention to Consider Cancellation) is a warning issued before a discretionary cancellation, inviting a response. A revocation request under s 501CA comes after a mandatory cancellation has already taken effect, asking that the decision be undone. Different situations, different deadlines - the revocation request must generally be made within 28 days.
Is there a hearing?
It depends on the pathway. Where a delegate refuses revocation, there may be a merits review at the ART, which can involve a hearing. Where the Minister personally decides, merits review is generally unavailable and the focus shifts to whether the decision was lawful, in the courts. This is why identifying who made the decision is the first analytical step.
How Rise acts in character matters
Character cancellations are among the most serious decisions in migration law, and the timeframes are unforgiving. Our visa cancellations practice prepares s 501CA revocation requests and representations that engage each discretionary consideration with evidence, advises on the correct review pathway, and works alongside our judicial review team where a decision is legally vulnerable. If a visa has been cancelled - or a NOICC has been issued - book a consultation without delay. In character matters, the 28 days are the difference between a case and a closed door.