Can I Get a Partner Visa If My Visa Was Cancelled Under Section 501?

Why does a section 501 cancellation block a partner visa?

A section 501 cancellation blocks a partner visa because two separate provisions work together against it. Section 501E prevents the person from making a valid application in Australia for most visas, including the Subclass 820, and special return criterion 5001 prevents grant of a Subclass 309 to a person whose visa was cancelled under section 501, with no waiver. Our article on the partner visa and section 501 explains the character provisions in detail.

Can a mandatory cancellation be revoked?

A mandatory cancellation can be revoked if the person makes a revocation request under section 501CA within the time limit and the decision maker is satisfied that they pass the character test or that there is another reason to revoke. The request must be made within a strict period set by the regulations. Revocation removes the section 501 barrier to a partner visa, which is why it is usually the first step. Our article on partner visa cancellation review explains how cancellation decisions are challenged.

What matters in a revocation request or review?

The matters that count in a revocation request or review include the protection of the Australian community, family violence, the strength of the person's ties to Australia and the best interests of minor children in Australia, as set out in the ministerial direction made under section 499 of the Migration Act. A genuine partner relationship with an Australian citizen or permanent resident is relevant to the ties to Australia. Evidence of rehabilitation and the impact on the family should be detailed and independent. Our article on partner visa character refusal explains how these factors are weighed.

Can the Administrative Review Tribunal review the cancellation?

The Administrative Review Tribunal can review many section 501 decisions made by a delegate, including a refusal to revoke a mandatory cancellation, but it cannot review decisions made by the Minister personally. Character review applications have their own short time limits, and the Tribunal must deal with them quickly. Our article on partner visa ART evidence explains how evidence is prepared for a Tribunal hearing.

What if the cancellation is upheld?

If the cancellation is upheld, the person remains subject to section 501E while in Australia and to special return criterion 5001 for any future Subclass 309. Judicial review in the Federal Circuit and Family Court of Australia may be available where the decision involves a legal error, but a court does not re-hear the facts. My Migration Lawyers assesses whether a decision may involve legal error and advises on the options that remain. Our article on partner visa judicial review explains the process.

How does My Migration Lawyers approach a partner visa after a section 501 cancellation?

My Migration Lawyers treats the cancellation, not the partner visa, as the first problem to solve, and checks the deadline for revocation or review on the day the matter comes in. The firm prepares the revocation request or review evidence with the partner relationship at its centre, so that the same material can later support a partner visa if the cancellation is overturned. Couples can speak with our partner visa lawyers as soon as the notice arrives.