Refusal or cancellation of visa—setting aside and substitution of non‑adverse decision under subsection 501(1) or (2)
501A Refusal or cancellation of visa—setting aside and substitution of non‑adverse decision under subsection 501(1) or (2)
This section applies if:
a delegate of the Minister; or
the ART;
makes a decision (the original decision):
not to exercise the power conferred by subsection 501(1) to refuse to grant a visa to the person; or
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
The Minister may set aside the original decision and:
refuse to grant a visa to the person; or
cancel a visa that has been granted to the person;
if:
the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
the person does not satisfy the Minister that the person passes the character test; and
the Minister is satisfied that the refusal or cancellation is in the national interest.
Action by Minister—natural justice does not apply
The Minister may set aside the original decision and:
refuse to grant a visa to the person; or
cancel a visa that has been granted to the person;
if:
the Minister reasonably suspects that the person does not pass the character test (as defined by section 501); and
the Minister is satisfied that the refusal or cancellation is in the national interest.
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).
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
The power under subsection (2) or (3) may only be exercised by the Minister personally.
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
A decision under subsection (2) or (3) is not reviewable by application under Part 5.
For notification of decisions under subsection (2), see section 501G.
For notification of decisions under subsection (3), see section 501C.
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