‘Risk to the Australian Community’ Under s501 and s116 Explained

The Department of Home Affairs (DoHA) is mandated to protect the Australian community when assessing an individual visa application to ensure that meets the character requirement. This is to ensure that the applicant does not pose a risk to the Australian community before making a visa decision.

What Does “Risk to the Australian Community” Truly Encompass?

The team “risk to the Australian community” extends beyond just direct threats of violence or crime. It broadly covers:

Public safety in protecting individuals from physical or psychological harm.
Maintaining adherence to laws, rules and societal norms.
Certain severe health conditions that pose a significant burden on the public health system can also be considered under broader public interest concerns.

What is The Character Test (Section 501)?

Section 501 of the Migration Act outlines the “character test”, which all visa applicants and holders must satisfy. If DoHA suspects that an individual does not pass this test, they can refuse to grant a visa or cancel an existing visa.

What Constitutes a “Risk to the Australian Community” Under Section 501?

Failing a character test, and thus posing a risk to the Australian community, can involve:

Substantial criminal record includes being sentenced to death, life imprisonment, or a term of imprisonment for 12 months or more (or multiple terms totalling 12 months or more).
Even if not resulting in a substantial record, convictions for violent offenses, sexual offenses, or serious fraud are considered.
Being associated with individuals, groups, or organisations involved in criminal conduct.
Past and present conduct that indicates you are not of good character, such as history of domestic violence, drug offenses, or others).
Suspicion that you may engage in criminal conduct, harass, molest, intimidate or be a danger to the community.

If an individual fails the character test under Section 501, the Minister has the power to refuse their visa application or cancel their current visa (if already granted). Most times, cancellation under Section 501 is mandatory.

What About Visa Cancellation (Section 116)?

While Section 501 is specifically about character, Section 116 provides a broader power to cancel a visa. A "risk to the Australian community" can still be a factor under this section, even if it is not a direct failure of the character test.

If you breach a condition of your visa (e.g., working more hours than allowed on a student visa), your visa can be cancelled under Section 116. While not directly a “character” issue, breaching visa conditions can be seen as a “risk”.
If your visa is found that you gave false or misleading information in your application, it may trigger Public Interest Criteria (PIC) 4020 for visa refusal. If you are currently holding a visa, your visa may be cancelled under Section 116 based on that false information.
If the grounds for which the visa was granted no longer exist (e.g., a Partner visa where the relationship has genuinely ended, and no exceptions apply), Section 116 can be used to cancel a visa.

What are the Consequences of Being Deemed a Risk?

If the Department determines you pose a risk under s501 or sometimes s116, the consequences can be:

Pending visa applications may be referred to Visa Applicant Character Consideration Unit (VACCU).
Receive a Notice of Intention to Consider Cancellation (NOICC) & Notice of Intention to Consider Refusal (NOICR) which may lead to a visa cancellation or visa refusal.
If your visa is cancelled, you may be detained and removed from Australia.
You could face re-entry bans such as PIC 4013 /4014.
If it happens, the cancellation or refusal will be recorded in your immigration record, and it can impact your future visa applications.

What to Do If You Have Concerns?

Consult an experienced immigration lawyer, even better with an Accredited Specialist in Immigration Law - Jason Ling who can assess your specific situation, interpret the law and advice on the next best step.
If you attempt to hide information and not be fully honest, it almost always be more detrimental to your visa application than disclosing it and addressing it upfront.
At the same time, collect all relevant supporting documents to support your claims.

Read our clients’ testimonials on Agape Henry Crux and Accredited Specialist in Immigration Law, Jason Ling.

How Can Agape Henry Crux Help You?

If you think your visa may be at risk due to character or breach of visa conditions, both of our Accredited Specialists in Immigration Law at Agape Henry Crux - Jason Ling or Angela De Silva - specialise in handling highly complex matters and can provide their expertise on your specific complex matter. You can book a Migration Planning Session with our team by calling 02-8310-5230 or emailing us to schedule a time at info@ahclawyers.com.

We speak fluent English, Mandarin and Cantonese. If these aren’t your language, we can also help you arrange an interpreter.

This article/presentation (“publication”) does not deal extensively with important topics or changes in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you find this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances, please contact our office.

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