Australia’s deportation laws work through two separate processes: deportation under Division 9 of the Migration Act 1958, which targets non-citizens for criminal or national security reasons, and removal under section 198, which applies to anyone without a valid visa. In practice, most forced departures happen through removal after a visa is cancelled on character grounds under section 501.1Parliament of Australia. Migration Act – Removal and Deportation Once a visa is cancelled, the person becomes an unlawful non-citizen, must be detained, and must be removed from Australia as soon as reasonably practicable.2Parliament of Australia. Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
What Triggers Visa Cancellation on Character Grounds
Section 501 of the Migration Act is the main power the government uses to expel non-citizens. Either a delegate of the Department of Home Affairs or the Minister personally can cancel a visa if the holder fails the character test. Failing the test is stage one. Whether to actually cancel is stage two, and it involves discretion.3Australian Government – Department of Home Affairs. Character Requirements for Visas
A person fails the character test for any of the following:
- A substantial criminal record, most commonly a prison sentence totaling 12 months or more
- Past criminal or general conduct suggesting the person is not of good character
- Membership in or association with groups reasonably suspected of criminal activity, people smuggling, or terrorism
- A significant risk that the person will engage in criminal conduct, harass others, or vilify a segment of the community
These grounds are broad, and a recent conviction is not required. The Minister can act on conduct and associations alone.3Australian Government – Department of Home Affairs. Character Requirements for Visas
Mandatory Cancellation for Non-Citizens in Prison
Section 501(3A) removes discretion entirely in certain cases. If a non-citizen is serving a prison sentence and has been sentenced to 12 months or more (including concurrent, periodic, or suspended sentences), or has been convicted of a sexual offense involving a child, the Department must cancel the visa. No individual assessment happens at that stage. Length of residence, family in Australia, and health conditions are all irrelevant at cancellation and only become relevant later, when the person asks for the cancellation to be revoked.
This catches long-term residents. Someone who has lived in Australia for decades can lose their visa automatically the moment a qualifying sentence is handed down.
The Factors That Decide the Outcome
Discretionary cancellations and revocation requests are both governed by Ministerial Direction 110, which took effect on 21 June 2024 and replaced the earlier Direction 99.4Department of Home Affairs. Direction No. 110 – Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA The direction is binding on every decision-maker, including the Administrative Review Tribunal.
Direction 110 sets out five primary considerations:
- Protection of the Australian community from criminal or other serious conduct
- Whether the conduct involved family violence, defined broadly to cover physical assault, financial control, stalking, property destruction, and isolating a person from support
- Strength, nature, and duration of ties to Australia
- Best interests of minor children in Australia
- Expectations of the Australian community
Family violence weighs heavily against a person being allowed to stay, even where other ties are strong.4Department of Home Affairs. Direction No. 110 – Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA
The 28-Day Revocation Request
After a mandatory cancellation, the Department sends a Notice of Visa Cancellation with a Revocation Request Form. You have 28 days from receiving the notice to lodge the request. Miss that deadline and the right to seek revocation is gone. This is the single most time-sensitive step in the whole process.
The request should address each of the five primary considerations in Direction 110 with documentary evidence. Strong applications typically include:
- Support letters from family, employers, and community organizations describing the person’s ties and contributions
- School reports, letters from counselors and doctors, and statements from the other parent showing the impact of separation on any children under 18
- Rehabilitation evidence: program completion certificates, letters from parole officers, counseling records, employment offers
- Country information, human rights reports, and evidence of specific threats faced on return
- Letters from treating doctors covering health conditions, particularly where ongoing treatment may not be available in the home country
Every claim needs documentation. Statutory declarations carry more weight than informal letters. The National Character Consideration Centre handles these submissions inside the Department, and an organized application that ties evidence to each consideration gives the decision-maker a clear path to revocation.
Tribunal Review Within 9 Days
If the Department refuses to revoke the cancellation, review is available at the Administrative Review Tribunal, which replaced the Administrative Appeals Tribunal on 14 October 2024.5Administrative Review Tribunal. New Federal Administrative Review Body Commences
The deadline is brutal. If the person is physically in Australia when the decision is made, they have only 9 days from being notified to lodge a review application, and no extension is available. Many cases collapse here, either because the person did not understand the deadline or could not get legal help fast enough while in detention.
The Tribunal conducts a fresh review, applying the same Direction 110 framework and weighing rehabilitation, the seriousness of the offending, ties to Australia, and the remaining primary considerations. If the Tribunal revokes the cancellation, the Minister still retains a personal power to override that decision in the national interest. When the Minister does that, the only remaining option is judicial review in the Federal Court on narrow legal grounds.
Bridging Visa During Review
A person whose visa has been cancelled does not automatically get to live and work in the community while review runs. A Bridging Visa E may be granted, but it does not carry automatic work rights. Whether work is allowed depends on the specific conditions imposed. Someone in financial hardship can apply for work permission, and the Department decides case by case.6Department of Home Affairs. Bridging Visa E (Subclass 050/051) Working without authorization can lead to cancellation of the bridging visa, detention, and removal.
Detention and Physical Removal
Once a person becomes an unlawful non-citizen, any officer who knows or reasonably suspects that status is required to detain them, with no obligation to bring them before a court. The Migration Act then requires removal as soon as reasonably practicable.7Australian Border Force. Immigration Detention in Australia
Not everyone is held in a locked facility. The Australian Border Force uses a risk-based approach. Lower-risk people may be released on bridging visas or into community detention. People with serious criminal histories whose visas were cancelled under section 501 are more likely to be held in a detention centre. During detention, authorities coordinate with foreign consulates to obtain travel documents, and removal usually happens on a commercial flight to the home country or a third country that will accept the person. Transport costs, including fares for the person and any custodian, are defined under the Migration Act and may be recoverable by the Commonwealth.
Limits on Indefinite Detention
In November 2023, the High Court ruled in NZYQ v Minister for Immigration that indefinite immigration detention without a judicial order is unconstitutional, overturning Al-Kateb v Godwin.8High Court of Australia. NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs Where there is no realistic prospect of removing a person to another country, the government cannot keep them locked up indefinitely. The decision forced the release of a number of detainees and prompted new supervision measures for those released.
Re-Entry Bans After Removal
Being removed does not just end the current stay. It typically triggers a re-entry ban that prevents the person from being granted a new Australian visa for a set period. Two Public Interest Criteria drive this.
PIC 4013 applies when a visa has been cancelled, generally barring a new visa for three years from the cancellation. PIC 4014 applies when a person departs Australia as an unlawful non-citizen, or on certain bridging visas more than 28 days after their last substantive visa expired, and carries a three-year ban from the date of departure. The Minister can waive these if satisfied there are compelling circumstances affecting Australia’s interests, or compassionate circumstances affecting an Australian citizen or permanent resident.
These three-year bans apply to administrative cancellations under the general provisions. For section 501 character cancellations, the path back is significantly harder: any future application requires passing the character test again, and the prior cancellation weighs against the applicant. People who overstay by fewer than 28 days may avoid the exclusion period, but that narrow window offers little to someone facing removal after a conviction.
Superannuation Before Your Status Changes
Removal carries a financial trap that catches long-term workers. Temporary visa holders who leave Australia can generally claim their accumulated superannuation through a Departing Australia Superannuation Payment. Anyone who has held a permanent visa loses eligibility for that payment permanently, even after leaving. Australian preservation rules apply once permanent residency is granted, and the funds stay locked until preservation age (currently 60). For someone deported after years of working on a permanent visa, that can mean tens of thousands of dollars sitting in a super fund inaccessible for decades.
If you are facing cancellation and have not yet been granted permanent residency, consider claiming your superannuation before your immigration status changes. Eligibility for a Departing Australia Superannuation Payment disappears the moment a permanent visa is granted.