The Character Test and Australian Visas

In 2015, almost 600 Australian visa holders who had been convicted of violent crimes, drug trafficking and child sex offences were deported from Australia. This occurred as policies were passed under which non-citizens, including Permanent Residents, would automatically lose their visas if they failed the character test. 

Section 501 of the Migration Act 1958

Section 501 of the Migration Act 1958 applies a character test to all non-citizens, including non-migrating family members and sponsors of visa applications. 

Regardless of which type of visa a person is applying for, it is mandated that they inform the Department of Home Affairs of any criminal convictions recorded against them inside or outside of Australia. A criminal conviction includes a conviction which has been deemed ‘spent’ or was ‘not recorded.’

A person may also be required to provide police certificates as part of their assessment for the character test. Failing to comply with this requirement may result in refusal or cancellation of their visa.

What is the character test?

To pass the character test, a person needs to prove that:

• They do not have any substantial criminal record; or
• They have never been convicted of fleeing from immigration detention or convicted for an infraction committed while detained in immigration detention, during a breakout from immigration detention or after a breakout, but before they were taken into immigration detention again; and

• That they have never been a member of a group or organisation, or have ever associated with a person(s), group or organisation(s) reasonably suspected of being involved in criminal conduct; and
• That they have never been reasonably suspected by the Minister as being involved in people trafficking, a crime against humanity, mass extermination, a war crime, a crime involving slavery or torture, or a crime that is of significant international interest; and
• That their criminal or general behaviour, past and present, shows that they are completely of good character; and
• While they are in Australia, there is no risk that they would be involved in criminal conduct, harass, molest, intimidate or stalk a person,  slander a segment of the Australian community,  provoke discord in the Australian community or a part of it or be a danger to the community of Australia or a part of it; and

• They have never been convicted or proven guilty for one or more sexual offences involving a child; or
• They have never been subject to a negative security assessment by the Australian Security Intelligence Organisation (ASIO); or
• They have never been subject to an Interpol notice where they were suspected to be a direct or indirect danger to Australian society, or any part of it.

What is a Substantial Criminal Record?

When a matter amounts to a substantial criminal record depends on the length of the sentence that was imposed. The time actually spent in prison is irrelevant. A person is considered to have a substantial criminal record if they have been:

• condemned to death or life imprisonment; or
• condemned to imprisonment for 12 months or more; or
• sentenced to two or more terms of imprisonment totalling 12 months or more; or
• found by a court to not be fit to plead regarding an offence committed which resulted in detention in an institution or facility.

Will a cancellation for failing the character test be permanent?

If a person was removed or deported from Australia after their visa has been cancelled on character grounds, they will be permanently ineligible for another visa to enter Australia. This visa cancellation will prohibit them from applying for other visas to remain in Australia, as well.

Currently, there is no visa allowing those who have been previously deported on character grounds to re-enter Australia.

Can I appeal the cancellation?

Cancellation of a visa under section 501 of the Migration Act 1958 is automatic. However, a person can apply to have their visa cancellation revoked by the Department of Home Affairs if they believe they should be allowed to continue to live in Australia.

A person must apply to have their visa cancellation revoked within 28 days from the date of the cancellation notice. They must then provide documentary evidence which supports their reasons for having the cancellation revoked to the Department of Home Affairs. This may be evidence of close family ties in Australia, the fact that the conviction was for a non-violent offence, or that they no longer pose an unacceptable risk to the community.

If the request to have the visa cancellation revoked is refused by a delegate of the Minister, and the person is still in Australia, they can still have the decision reviewed by the Administrative Appeals Tribunal. If they are in Australia, they are given up to 9 days upon notification to appeal the decision.

If the person is not in Australia and the decision was a refusal of a visa application, their sponsor or nominator will have a right to appeal on their behalf. If the person is outside of Australia, their sponsor or nominator is given 28 days to do so.

The Tribunal will have 84 days to come up with a new resolution. If it does not make a new resolution, the original decision to cancel or refuse the visa will be enforced.

A person may still seek judicial review of the resolution if they believe that the decision was not lawfully decided.

However, if the Minister made the cancellation personally, the visa-holder does not have the right to appeal. It is mandatory to cancel a person’s visa on the basis that they are currently serving a custodial sentence and have been sentenced to 12 months or more. The right to appeal is also denied if the person has been imprisoned of or was found guilty of a sex offence involving a child.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.