The purpose of the Character Test

Visa cancellation and criminal deportation continue to be a large focus by the current Australian government. Many individuals have had their visas cancelled over the past four years because of criminal records.

All non-citizens who wish to enter or remain in Australia must satisfy the character requirement of Section 501 of the Migration Act 1958.

The two objectives of the character framework are:

  • to protect the Australian community from the risk of harm posed by non-citizens of character concern, in line with community and government expectations and
  • to maintain integrity and public confidence in the character framework.

The Department of Home Affairs may refuse or cancel a visa if the visa applicant is unable to satisfy the Department of Home Affairs that they pass the Character Test.

Character Test: refusal and cancellation

If a person does not pass the character test, s501 provides:

  • a discretionary power to refuse a visa; or
  • a discretionary power to cancel a visa; or
  • a mandatory cancellation provision.

Grounds for visa refusal and cancellation

These include:

  • a substantial criminal record;
  • a conviction for immigration detention offences;
  • association with persons suspected of engaging in criminal conduct;
  • past and present criminal or general conduct; or
  • significant risk of particular types of future conduct.

The most important of these is if a visa applicant has a substantial criminal record, particularly if they were:

  • sentenced to prison for more than 12 months; or
  • sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more (this includes all terms of imprisonment, including those that are to be served concurrently).

 

Appeals

If a person fails the character test and the visa is refused, a person may have recourse to the  Administrative Appeals Tribunal or the Courts.

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