Australia, like many other nations, requires that visitors and people who are wishing to migrate are of good character as outlined in the Department of Immigration (the Department) policies. In making a determination on whether a person is fit for entry into the country, the Department applies a ‘character test’ which ultimately decides whether or not a person is granted a visa to enter Australia.
Who does the character test apply to?
The character test is applied to not only visitors or individuals who are seeking to migrate, but can also be applied to a visa sponsor who is not an Australian citizen.
What are the requirements of the character test?
The Minister for Immigration and Citizenship (the Minister) and a decision maker in the Department have the power to make a decision to grant or refuse a visa on character grounds on a case-by-case basis. It’s important to note, that the Minister or the Department have the authority to revoke a visa that has already been granted if it is later established that the person has failed the character test.
A person is deemed to have failed the character test if:
• they have a substantial criminal record
• they have an association with another individual, group or organisation whom the Minister reasonably believes has engaged in criminal conduct
• they are likely to engage in criminal activities in Australia
• they are likely to harass, stalk, or molest another person while in the country
• they are likely to incite discord within the community, or a segment of the community within Australia
• they represent a danger to the community, or a segment of that community by being likely to become involved in activities that are disruptive, violent or threatening.
If a person has been imprisoned overseas, are they automatically denied entry into Australia?
An individual who is seeking entry into the country is not automatically disqualified from entry into Australia if they have been imprisoned in the past. When making an assessment to grant a person a visa who has been imprisoned overseas is a discretionary power that both the Minister and the Department is able to exercise. However, a person who has a substantial criminal record will automatically be refused a visa and will be permanently denied entry into Australia if they:
• have been sentenced to death
• have been sentenced to life imprisonment
• have been sentenced to a term of imprisonment of 12 months or more
• have been sentenced to two or more terms of imprisonment with the total amount of time spent in jail being more than two years
• have been acquitted of a crime due to insanity or mental impairment.
However, a person will not be automatically denied a visa if they have had their criminal record quashed or have received a pardon.
In deciding to grant or refuse a person a visa, the overriding consideration for the Department is the wellbeing of the community. If there is a possibility that the community or other individuals might face a threat from an applicant, the visa may be denied.
Can a person appeal the decision for the cancellation of a visa when they are already in Australia?
If a person is already in the country and the decision is made to cancel the visa, they have no right of appeal if the Minister was the person that cancelled a visa. Alternatively, if a visa was cancelled by a decision maker within the Department, the person does have a right for the decision to be reviewed by the Administrative Appeals Tribunal (AAT).
In appealing a visa cancellation, an application must be submitted within nine days of the decision and if the AAT has not made a judgment within 84 days from the date of notification, this would signify that the original decision to cancel the visa has been upheld.
If you or someone you know has any visa related issue or question, please seek the appropriate legal advice.