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Month: August 2025

BY: root
12 September, 2025 Comments (0)

An Introduction to the Victorian Civil & Administrative Tribunal

A Comprehensive Guide to VCAT – Victorian Civil and Administrative Tribunal Introduction The Victorian Civil and Administrative Tribunal, more commonly known and referred to as VCAT for short, plays a central role in resolving a wide range of disputes in Victoria. Established to provide a faster, more affordable, and accessible alternative to court proceedings, VCAT hears thousands of cases each year, and does so in a less formal, rigid manner that a typical Court. For individuals and businesses, understanding how VCAT works can be the difference between a smooth resolution and a stressful, drawn-out process. This guide explains what VCAT does, the types of disputes it hears, how to start a case, and what to expect about the process. What Is VCAT? VCAT is a tribunal, not a court. This means it operates with less formality than courts, but it still makes legally binding decisions. Created under the Victorian Civil and Administrative Tribunal Act 1998 (Vic), it brings together several separate boards and tribunals into one body. Its purpose is to offer: Accessible dispute resolution Affordable hearing fees and simplified procedures Specialist divisions with expertise in different areas of law VCAT’s structure and divisions VCAT is divided into specialist divisions and lists, each dealing with specific types of cases. 1.       Civil division Covers disputes such as: Consumer and trader disputes Domestic building disputes Owners corporation matters Certain disputes involving property 2.       Administrative division Handles disputes about decisions made by government agencies, such as: Planning and environment matters Land valuation objections Freedom of Information reviews 3.       Human rights division Deals with: Guardianship and administration orders Equal opportunity and anti-discrimination cases Mental health treatment matters 4.       Residential tenancies division Hears cases involving: Tenants and landlords Rooming houses Caravan parks Retirement villages Advantages of VCAT compared to courts Lower cost – Application fees are generally lower than court filing fees Less formality – Procedures are simplified, and legal representation is often optional Specialist expertise – Each division has members experienced in the area of law it is dealing with Speed – Many disputes are resolved faster than through the court system When VCAT is appropriate You may bring a case to VCAT if your dispute falls under an area of law in which VCAT has jurisdiction to hear and determine the issue. Starting a case at VCAT 1.       Check if it’s the right jurisdiction First, confirm that VCAT can hear your dispute. Not all matters can be brought to VCAT. Its website and the relevant legislation can help to determine what types of disputes VCAT has jurisdiction to hear and determine. 2.       Prepare your application Applications are usually lodged online via the VCAT website. The application form requires: Details of the parties The type of dispute The orders you are seeking Any supporting documents 3.       Pay the application fee Fees vary depending on the type of case, the division, and whether you are an individual or business. Concession fees are available for eligible applicants. 4.       Serve the application Once lodged, you may need to serve the application on the other party. VCAT will provide instructions on how to do this. Before the hearing Directions hearings and mediation VCAT may hold a directions hearing to set timelines for filing documents. In many cases, parties are referred to mediation or compulsory conferences before a final hearing. Preparing your evidence You should gather all documents, photos, contracts, and witness statements that support your case. Evidence should be filed and served according to VCAT’s directions. The hearing process VCAT hearings are generally less formal than court trials, but they follow a structured process: Opening – The tribunal member introduces the case and outlines the process. Presentation of Evidence – The applicant presents their case first, followed by the respondent. Questioning – Parties or the tribunal member may ask questions of witnesses. Closing Submissions – Each party summarises their case. Decision – The tribunal member may give an oral decision at the end or reserve the decision to be delivered later. Legal representation at VCAT Unlike courts, legal representation at VCAT is not always automatic. In many lists, you must seek permission to be represented. However, in more complex matters, such as large building disputes, representation is common and often advisable. Outcomes and orders VCAT can make a range of orders, including: Payment of money Completion of works Termination of tenancy agreements Orders to set aside or vary government decisions These orders are legally binding and enforceable. Enforcing a VCAT order While VCAT’s orders are binding, they are not self-enforcing. To enforce a monetary order, you must register it with the appropriate, which can then be enforce in accordance with that court’s enforcement procedures. Appeals and reviews VCAT decisions can be appealed to the Supreme Court of Victoria, but only on a question of law. This means you must show that VCAT made an error in applying the law, not simply that you disagree with the outcome. There are two (2) divisions of the Supreme Court of Victoria in which an appeal can be filed: The Court of Appeal; or The Trial division. Practical tips for success at VCAT Be prepared – Have all your evidence organised and ready to present. Stay professional – Even though VCAT is less formal, respectful and concise communication is essential. Know the law – Understand the legislation which applies to your dispute. Consider legal advice or representation – Even if you represent yourself, professional advice beforehand can improve your case strategy. Common misunderstandings about VCAT It’s informal, so preparation is unnecessary – Incorrect. While VCAT is less formal than court, thorough preparation is essential. It’s always faster – While many cases are quicker, some lists (such as planning) have significant backlogs. Conclusion VCAT offers Victorians an accessible and cost-effective way to resolve many types of disputes. However, success at VCAT still requires preparation, understanding of the process, and attention to detail. Whether you are a landlord, tenant, consumer, business owner, or challenging a

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BY: root
12 September, 2025 Comments (0)

A Guide to Default Judgments

In litigation, time is critical. As is frequently the case, the failure to obtain proper legal advice after receiving a court document can result in judgment being entered against you. This often occurs without any notice. This is why, it is important to: Obtain legal advice as soon as possible after being given court documents; and Take appropriate steps in accordance with that requirements of that document. Each year, many Australians are blindsided by what is known as a default judgment. This typically happens when a party fails to appropriately respond to a claim, such as by filing a defence on time Default judgment is where the plaintiff is awarded judgment without a hearing, and usually because the defendant did not take any steps to respond to the claim, even after notice. So, what can you do if this happens to you? Fortunately, Australian courts have the power to set aside default judgments. However, the process is not automatic, and delay can be fatal. This article explores how default judgments operate, the grounds for setting them aside, and the steps you should take immediately. Whether you’re a business owner who missed a court notice or an individual facing unexpected legal consequences, understanding your rights is essential; especially if you have a default judgment entered against you. What Is a Default Judgment? A default judgment is a court order granted in favour of a plaintiff when the defendant has failed to comply with a procedural requirement; most commonly, this occurs where the defendant has failed to file a notice of appearance, or a defence, in the relevant court proceedings. Typically: A defendant has 28 days from service of the Statement of Claim to file a defence (timeframes may vary slightly by jurisdiction). If no defence is filed within time, the plaintiff may apply for default judgment without giving further notice. The consequences of a default judgment are that: Judgment is entered against you (or your business); and That judgment is recorded on your (or your business’) creditor report. Additionally, after judgment is obtained by a plaintiff, they can usually apply to enforce that judgment, and seek orders such as: a garnishee order (requiring your employer or a third party to pay a portion of your income to the creditor); a sale and seizure, or similar order, which requires the bailiff to seize and thereafter, sell, personal property (such as a case), or real property (land); or bankruptcy or insolvency proceedings; amongst other types of orders. A default judgment is serious. If not dealt with promptly, it can escalate into further legal or financial consequences, in addition to the effects on credit ratings, etc. Common reasons for not responding Missing a deadline to file a defence can occur for many reasons: Court documents were served at the wrong address You mistakenly believed the claim lacked merit You were overseas or hospitalised at the time You simply misunderstood the deadline Even if your explanation is genuine, you must still persuade the court to set aside the judgment. Timing and detail, as to the reasons, to set aside a judgment are necessary and critical to success.   Can a Default Judgment be set aside? Yes. Australian courts have discretion to set aside default judgments under their procedural rules. However, you must actively apply to the court, and success is not guaranteed. Courts will consider several key factors when deciding whether to grant your application. Setting aside a Default Judgment Each State and Territory court usually have their own procedural rules, but the legal test is usually the same across jurisdictions. The court will usually examine: Whether there is a satisfactory explanation for the default Whether the defendant has a genuine defence on the merits Whether the application was made promptly Where judgment was entered illegally, irregularly or against good faith These principles are grounded in both legislation and case law, according to each State or Territory the judgment was given in. 1.        A reasonable reason for the delay in responding to the claim You must give the court a valid and reasonable explanation for why you didn’t file a defence, or take appropriate and necessary steps as requested in the summons, in time. Some of the following reasons may be accepted: You did not receive the claim documents (e.g. incorrect address) You were incapacitated or medically unfit You were unaware of the proceedings due to travel or unforeseen events Evidence is crucial. Medical records, affidavits, or travel documents will assist in supporting your explanation. Courts take a dim view of defendants who simply ignore proceedings or misunderstand court deadlines. 2.        A defence on the merits It is usually preferable to give a reason as to why you say that there is a defence to the claim, whilst seeking to set aside the default judgment. This gives the court something to assist it when determining whether the reasons for setting the default judgment aside, are worthwhile. You don’t need to provide much evidence at this stage, but you should give a basic outline of why you say there is a genuine dispute that should be heard. An undertaking, or a solicitor at this stage, who can prepare the defence, is helpful in persuading the court that steps will be taken to resolve the non-compliance, allowing the case proceed. Common examples include: Disputing the amount claimed Denying liability under the contract Arguing the claim is out of time (statute-barred) Asserting defences like misrepresentation or lack of agreement   3.        Promptness of the application to set aside Promptness is essential. Even with a valid explanation and a strong defence, an unreasonable delay may result in the application being denied; for example, a failure to file an application to set aside the default judgment is unlikely to be accepted (for example) after 2 years have elapsed since default judgment was entered. As a rule of thumb: File your application as soon as possible after discovering the judgment Include an affidavit explaining the timeline of events

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BY: root
12 September, 2025 Comments (0)

Statutory Demands: A guide for creditors & debtors

Statutory Demands in Australia: A Guide for Creditors and Debtors A statutory demand is a formal, written notice issued by a creditor to a debtor (which must be a corporation), requiring immediate payment of an outstanding debt. Failure to comply within 21 days may result in the company being presumed insolvent open to being subject to a winding up application in the Federal Court or Supreme Court. A statutory demand is a powerful legal instrument under the Corporations Act 2001 (Cth) and is often the first step in corporate debt enforcement and collection. This article explains the process and implications of statutory demands, both from the perspective of a creditor seeking to recover a debt, and a company that has been served with one. What ss a statutory demand? Under section 459E of the Corporations Act 2001, a statutory demand is a formal demand issued by a creditor which compels a company (the debtor) to pay a debt (or debts) totalling at least $4,000. The debtor company then has 21 days (the statutory period) to either: Pay the debt in full; Enter into an arrangement acceptable to the creditor; or Apply to the court to have the demand set aside. If the debtor company fails to take appropriate steps within the statutory period, the creditor can apply to wind the company up in insolvency pursuant to section 459Q of the Corporations Act 2001. Purpose of a Statutory Demand A statutory demand serves two primary functions: Enforcement: It places legal pressure on the debtor to resolve or pay the debt. Insolvency trigger: Non-compliance establishes a legal presumption of insolvency, forming the basis for a liquidation application. Statutory demands are not intended to resolve disputes. They are only appropriate where the debt is undisputed, due, and payable. Nevertheless, they remain and effective measure of compelling payment. Requirements of a valid statutory demand To be effective, a statutory demand must strictly comply with the formal requirements of the Corporations Act and the Corporations Regulations 2001 (Cth). Non-compliance can render the demand invalid and lead to adverse cost consequences for the creditor. Key statutory requirements (under s459E(2)): A statutory demand must: Be in writing; Specify the debt or total amount owing (if more than one debt); Require the debtor company to pay, secure, or compound the debt to the creditor’s reasonable satisfaction; Be in the prescribed form; Be signed by or on behalf of the creditor; and If the debt (or a part of the debt) is not a judgment debt, be accompanied by an affidavit verifying that the debt is due and payable. Errors in the form, or failure to provide a supporting affidavit, can invalidate the demand. Supporting affidavit For debts that are not based on a court judgment, a statutory demand must be accompanied by a properly sworn affidavit confirming: The creditor’s belief that the debt is due and payable; The basis on which the debt is claimed; and Must comply with the rules of court. Serving the statutory demand Service of the statutory demand must be executed in accordance with the Corporations Act 2001. Correct service is essential to enforceability. Common methods include: Delivering the demand to the company’s registered office; or Leaving it with a director or authorised officer. Service by post is permitted if addressed to the registered office. Courts regularly deal with challenges to statutory demands based on improper service, and even minor defects in service can be fatal to enforcement. Consequences of non-compliance If the debtor company fails to respond within 21 days of effective service, the following consequences may arise: A presumption of insolvency is triggered under section 459C(2)(a); The creditor may file an application for the company to be wound up in insolvency; The burden shifts to the debtor to rebut the presumption in court. It is not necessary to prove actual insolvency at this stage. The failure to comply with the statutory demand is, on its own, sufficient evidence of insolvency for the purpose of a winding up application. Grounds for setting aside a statutory demand If a company wishes to challenge a statutory demand, it must apply to the court within 21 days of service to have the demand set aside. The application must be supported by an affidavit outlining the reasons. Under section 459H, the court may set aside a statutory demand if: 1.     There is a genuine dispute about the existence or amount of the debt The dispute must be bona fide and based on real grounds, not simply a denial of the debt. A genuine dispute does not require the company to prove it will succeed, only that there is a serious question to be tried. 2.     The company has an offsetting claim An offsetting claim arises where the debtor company has a counterclaim, set-off or cross-demand against the creditor, whether liquidated or unliquidated, and whether or not the claim arises from the same transaction. 3.     There is a defect in the demand causing substantial injustice This may include errors in form, amounts, or inconsistent or unclear descriptions of the debt. 4.     There is some other reason the demand should be set aside Courts retain discretion to set aside a demand in circumstances of abuse of process, unconscionable conduct, or other equitable grounds. The “Substantiated Amount” If the court finds that part of the debt is in dispute or subject to an offsetting claim, it may assess what is called the substantiated amount – the undisputed portion of the debt. If the substantiated amount is below the statutory minimum ($4,000), the demand must be set aside. Timeframes are strict Strict compliance with time limits is essential. The application to set aside the demand must: Be filed in the court within 21 days of service; and Be served on the creditor promptly. Late applications will not be accepted, and the statutory presumption of insolvency will remain in place. Strategic considerations for creditors Creditors should carefully assess the circumstances before issuing a statutory demand. Key considerations

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BY: root
12 September, 2025 Comments (0)

The Importance of a Will: Insights from a Wills & Estates Lawyer

The Importance of a Will: Insights from a Wills & Estates Lawyer When life is busy with work, family, and personal goals, it’s easy to push estate planning to the bottom of the list. But failing to have a valid Will in place can create significant and unnecessary, legal and financial problems for the loved ones you leave behind. As an experienced Will & Estates Lawyer in Melbourne, we’ve seen first-hand how important a properly drafted Will can be. It provides clarity, protects your family, and ensures that your wishes are honoured after your death. In this article, we’ll explore the importance of having a Will, what happens if you die without one, how a Wills & Estates Lawyer, such as those at Allen Law can help, and why the present is always the best time to get your wishes down on paper. What Is a Will? A Will is a legally binding document that outlines how your estate is to be managed and distributed after you pass. Your estate includes everything you own—property, bank accounts, investments, vehicles, personal items, and even digital assets. A properly prepared Will also allows you to: Appoint an executor to carry out your wishes Nominate guardians for your children Make special gifts or charitable donations Create testamentary trusts for vulnerable beneficiaries Additionally, a Will can provide instructions as to what you would like to be done after your death, for example, if you wish to be buried, and where, or cremated and your ashes stored or scattered, along with any religious rites you may want to be performed. It’s a foundational document in any comprehensive estate plan, and working with a Wills & Estates Lawyer ensures it’s properly and correctly prepared in accordance with the law.   Why a Will is important 1.     You Stay in Control of Your Estate One of the greatest benefits of having a Will is that you, not the law, decide how your assets are distributed. If you die intestate (without a valid Will), your estate will be divided according to a strict legal formula under the laws of intestacy. That formula may not reflect your personal wishes or family dynamics. A well-crafted Will puts you in control. You can leave specific assets to specific people, divide your estate how you see fit, and even exclude certain individuals if appropriate. At Allen Law, we regularly help clients structure their Wills to reflect their unique relationships and values and wishes. 2.     You Can Appoint a Trusted Executor An executor is the person responsible for administering your estate after your passing. The executor is responsible for collecting your assets, paying any debts or taxes, and distributing what’s left in accordance with your Will. If you die without a Will, the law determines who can be appointed the executor of your estate. This may ultimately be someone you would not have chosen to be the executor and administrator of your estate.   A Wills & Estates lawyer can help you select an appropriate executor and explain the legal duties involved. You may also want to appoint a secondary, supplementary executor in case your first choice is unwilling or unable to act, such as when the executor passes before you. 3.     Protecting Children and Dependants If you have children under the age of 18, a Will is essential. It allows you to appoint guardians who will care for your children if you and your partner both pass away. Without a Will, a court will usually decide who takes on this role, and may result in a guardian being appointed that you would not agree with. In addition to guardianship, a Wills & estates lawyer can help you set up testamentary trusts; this is a legal structure that protects inheritances for minors or vulnerable beneficiaries (e.g., those with disabilities or addiction issues). This ensures your estate is used wisely and for the right purposes, until the beneficiary (for example, in the case of children), ascertain a certain age. 4.     Avoiding Family Disputes Sadly, when someone dies without a clear Will, it often leads to family conflict. Disagreements over property, finances, or funeral wishes can spiral into full-blown legal disputes. A properly drafted Will, prepared by a qualified lawyer with experience in Wills and estates, significantly reduces the chance of a dispute. Your intentions are clearly stated, legally enforceable, and hard to contest when done correctly. 5.     It Speeds Up the Probate Process Probate is the legal process of validating a will and administering the estate. When a will is properly drafted and executed, this process is usually straightforward. Without a valid Will, the process becomes longer, more expensive, and more emotionally taxing for your loved ones. Working with a Wills & Estates Lawyer ensures the document meets all legal requirements, helping your family avoid unnecessary court delays. 6.     You Can Leave a Legacy Many people want to leave something behind for causes they care about, whether it’s a charity, a community organisation, or a religious institution. A Will allows you to leave bequests to charities or causes that matter to you. You can also leave personal gifts, such as family heirlooms or sentimental items, to specific people. What happens if you die without a Will, or a valid Will? When a person dies without a Will in Victoria, they are said to have died intestate. In such situations, the Administration and Probate Act 1958 (Vic) determines how your estate will be divided, and who can administer it. Here’s what could happen if you die intestate: Your spouse may receive everything, even if you have children from a previous relationship. Your children may receive equal shares, regardless of need or your wishes. Stepchildren, close friends, or unmarried partners may receive nothing. The court appoints an administrator (not necessarily someone you trust). The process can be slow, stressful, and expensive for your family. These problems can be avoided almost entirely be having an appropriate and legally valid Will in place before

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BY: root
12 September, 2025 Comments (0)

Unfair Dismissal: Australian Employment Law

Unfair Dismissal in Australia: Rights & Obligations Under the Fair Work Act 2009 Losing your job can be distressing, especially if you believe your dismissal was unjust, harsh, or not handled properly. Under Australian law, employees are protected from unfair dismissal by the Fair Work Act 2009 (Cth). If you’ve recently been dismissed or terminated, you may have legal grounds to challenge it. At Allen Law, we help employees and employers across Australia navigate termination and other workplace disputes, including unfair dismissal claims. In this article, we explain what constitutes an unfair dismissal, who is eligible to make a claim, the application process, and how we can help you. What is unfair dismissal? Under section 385 of the Fair Work Act, a dismissal is considered unfair if: The person has been dismissed, and The dismissal was harsh, unjust, or unreasonable, and The dismissal was not a case of genuine redundancy, and The dismissal was not consistent with the Small Business Fair Dismissal Code (if applicable). Each of these elements must be assessed to determine whether a dismissal is unfair under the law. If any element cannot be established, the person will be taken to have not been unfairly dismissed. Understanding ‘harsh, unjust or unreasonable’ The Fair Work Commission (FWC) must take into account various matters when considering whether a dismissal was harsh, unjust or unreasonable. Some of these include: Whether there was a valid reason for the dismissal (e.g., poor performance, misconduct); Whether the employee was notified of the reason; Whether the employee was given a chance to respond; Whether the employee had a support person present at any discussion relating to the dismissal; and Any other matter the Fair Work Commission considers relevant. In many cases, it’s not just what the employer did, but how they did it that determines whether the dismissal was unfair. Who can make an unfair dismissal claim? Not every dismissed worker is eligible to make a claim. You must meet certain jurisdictional requirements under the Fair Work Act. Eligibility Criteria: You must be an employee (not an independent contractor); You must have completed the minimum employment period: 6 months for large businesses (15 or more employees) 12 months for small businesses (fewer than 15 employees) Your annual earnings must be less than the high-income threshold (as of 1 July 2025, this is $183,1,000, excluding super and bonuses), unless you are covered by a modern award or enterprise agreement You must lodge your application within 21 days after the dismissal has taken effect. The time frame is strict, and accordingly, a failure to lodge an application will usually result in your application being objected to. Despite this, you can make an application, seeking that your unfair dismissal application be accepted out of time. What Is a genuine redundancy? A dismissal is not unfair if it is a genuine redundancy. This means: The role is no longer required due to changes in operational requirements. The employer consulted with the employee in accordance with any applicable award or agreement. The employee could not reasonably be redeployed to another role. If your employer claims redundancy but still hires someone to do the same job, or fails to consult you, the dismissal may be challenged as unfair. Small Business Fair Dismissal Code If you work for a small business (fewer than 15 employees), the Small Business Fair Dismissal Code will apply to your dismissal. This code allows provides a small business with a degree of greater flexibility in relation to dismissals in cases of serious misconduct, such as theft, violence, or safety breaches, provided the employer ha reasonable grounds and acted promptly. The code also provides a longer period in which an employee can be dismissed i.e., 12 months, as opposed to 6, which would generally prohibit an application being made if the dismissal occurred after a period of less than 12 months employment. If the code is not followed, the dismissal may still be ruled unfair. Common examples of unfair dismissal No valid reason given for dismissal; Termination without warning after a minor mistake; Termination during a period of leave; Retaliation for making a complaint, requesting flexible work, or exercising a workplace right (being more a general protections claim as opposed to unfair dismissal); or Forced resignation, where the employer created an intolerable work environment (constructive dismissal), which caused the employee to resign. What compensation can you get for unfair dismissal? If the Fair Work Commission finds that your dismissal was unfair, it may order:Reinstatement to your former job; Compensation, capped at 26 weeks’ pay or half the high-income threshold; Back pay, if reinstated; Lost entitlements, such as notice pay or unused leave (in some cases). Note: A remedy under the Fair Work Act 2009 is not automatic, it is discretionary. Accordingly, even though a finding of unfair dismissal occurs, a remedy may not automatically follow (although it usually will). The unfair dismissal application process Here’s a step-by-step guide to how unfair dismissal claims are handled: 1. Lodge the ApplicationYou must file an application with the Fair Work Commission within 21 days after the dismissal took effect. This is a strict deadline. 2. Employer ResponseThe employer must respond within 7 days. 3. Conciliation ConferenceMost cases are first referred to a conciliation conference: an informal phone mediation between you, the employer, and a conciliator from the Fair Work Commission. Many disputes are resolved at this stage. 4. Hearing or ConferenceIf conciliation fails, the case may proceed to a formal hearing or conference before a member of the Fair Work Commission. 5. DecisionThe FWC will issue a binding decision based on the evidence, which may include reinstatement, compensation, or dismissal of the claim. Legal Representation: Do You Need a Lawyer? An employment lawyer can significantly improve your chances of success in employment disputes. At Allen Law, we: Help prepare strong, compelling applications Identify procedural and legal errors made by the employer Represent clients at conciliation and hearings Advise on realistic outcomes and negotiate settlements Help calculate lost earnings and

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BY: root
12 September, 2025 Comments (0)

Visa Cancellations in Australia

Australian Visa Cancellations: Understanding Sections 116 and 501 of the Migration Act Visa cancellations are among the most serious actions the Department of Home Affairs can take against non-citizens in Australia. Whether a person is visiting, studying, working, or has lived in Australia for decades, a visa cancellation can have immediate and severe consequences, including detention and removal from Australia. Under the Migration Act 1958 (Cth), the Minister for Home Affairs (or a delegate) is granted broad powers to cancel a visa at any stage. Visa cancellations usually occur by the exercise of a power under either section 116 or section 501 of the Migration Act 1958. These powers are frequently used in the interests of public safety, character concerns, and compliance with visa conditions. This article provides an overview of the grounds, procedures, and legal consequences of visa cancellations under these sections, as well as options available for appeal or review. The legal framework for visa cancellations The Migration Act 1958 provides various grounds on which a visa may be cancelled. The relevant cancellation power will depend on the circumstances of the visa holder, their location at the time (onshore or offshore), and the nature of the alleged conduct or non-compliance enlivening the power to cancel the visa in question. Some visa cancellations are discretionary, while others are automatic or mandatory, depending upon the circumstances. The legal complexity increases further when character assessments or criminal histories are involved. While there are several provisions for cancellation, section 116 and section 501 are the most frequently applied and subject to review in the Administrative Review Tribunal (formerly, the Administrative Appeals Tribunal). Section 116 of the Migration Act – discretionary visa cancellations Section 116 allows the Minister or their delegate to cancel a visa if certain conditions or risk factors are met. This power is broad and applies to almost all types of visas, including student, visitor, skilled, and permanent resident visas. Grounds for Cancellation under Section 116 A visa may be cancelled under section 116 if: The visa holder has not complied with a visa condition; The visa was granted based on false or misleading information; In the case of a student visa, the visa holder is not, or is likely not, a genuine student; or the visa holder has engaged, is engaging, or is likely to engage in conduct which is not contemplated by the grant of the student visa; The presence of the person in Australia is, or may be, a risk to: The health, safety, or good order of the Australian community; or The health or safety of an individual. There has been a change in circumstances such that the visa would not have been granted if those circumstances had existed at the time of the application; or A prescribed ground for the cancellation of a visa applies to the visa holder. Importantly, cancellation under section 116 is discretionary. The only exception to this is subsection 116(3), which provides that if the Minister (or their delegate) may cancel a visa under section 116, the Minister must cancel the visa if there exists prescribed circumstances in which a visa must be cancelled. Notification of cancellation under section 116 If the Minister or their delegate decides to cancel a visa under a power contained in section 116, notice must be given to the visa holder of the proposed cancellation in the prescribed method, stating the basis on which the Minister proposes to cancel the visa. The notice must also invite the visa holder, within a specified time, to substantiate that the grounds for cancellation do not exist, or that there is some other reason why their visa should not be cancelled. Legal assistance during this stage is critical. An experienced immigration lawyer can prepare comprehensive submissions addressing the legal criteria, factual background, and mitigating circumstances. This is of paramount importance, as satisfying the Minister or their delegate that the grounds upon which they propose to cancel the visa is erroneous, or that there are other grounds on which the visa ought not to be cancelled. Some of the grounds which can be relied upon include, but are not limited to, family ties, community support, and international obligations owed to the visa holder. Section 501 of the Migration Act – refusal or cancellation of visa on character grounds Section 501 provides the Minister with the power to refuse to grant, or to cancel, a visa on character grounds. This provision applies to both temporary and permanent visa holders and has been used increasingly in recent years in the context of criminal conduct or criminal association. The Character Test Under subsection 501(6), a person does not pass the character test if, among other reasons: They have a substantial criminal record; They have been convicted of sexually based offences involving a child; They are reasonably suspected of being a member of, or having an association with, a criminal organisation; There is a significant risk that the person would engage in criminal conduct, harass or vilify a segment of the community, or pose a danger to the community; or They have been convicted of an offence: that was committed whilst in immigration detention; or during an escape by the person from immigration detention; or after they escaped from immigration detention, but before the person was taken into immigration detention. A substantial criminal record generally means the person has been sentenced to a term of imprisonment of 12 months or more, either as a single sentence or cumulative total. Naturally, this would include a sentence of death, or imprisonment for life. Mandatory visa cancellations under section 501(3A) In certain circumstances, cancellation under section 501 is mandatory. This usually applies when a non-citizen: has a substantial criminal record; or is serving a term of imprisonment for life for an offence against the law of the Commonwealth, or a State or Territory; or has been convicted of a sexually based offence involving a child. In such cases, the Minister must cancel the visa without notice. The

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