Any person wishing to either visit or migrate to Australia, must satisfy the character requirement as set out in s 501 of the Migration Act 1958
(Cth) (the Act). The character requirement attaches itself to the type of visas which are applied through the Public Interest Criterion (PIC) 4001, and it is up to the applicant to demonstrate that they are of good character. Applicants who fail the character requirement will have their visa refused or cancelled by either the Minister for Immigration and Citizenship (the Minister), or the Department of Immigration and Citizenship (the Department).
When does a visa applicant fail the character test?
An applicant will be deemed to have failed the character test if:
- they have a substantial criminal record;
- they have been convicted of an offence while in immigration detention, escape from immigration detention, during the period of escape from immigration detention, or been convicted of an offence of escaping from immigration detention;
- having regard to the person’s past and present general criminal conduct, the person is judged not to be of good character;
- there is a significant risk that the person will engage in criminal conduct such as harassing, molesting, intimidating or stalking another person, or vilifying, inciting discord against a segment of the Australian community or the Australian community, or the person represents a danger to the Australian community, or a segment of that community.
What is considered as a ‘substantial criminal record’?
A person will be judged to have a ‘substantial criminal record’ if they have been sentenced to:
- death or life imprisonment;
- a term of imprisonment for at least 12 months;
- two or more terms of imprisonment, where the total of the terms is two years or more;
- acquitted of an offence due to unsoundness of the mind, or insanity, and as a result, requiring the person to be detained in a facility or institution.
What discretionary powers do the decision-makers possess?
If an applicant does not pass the character test, the decision-makers will decide whether to refuse the application or sponsorship, or to cancel the visa altogether.
When exercising the discretion of refusing or cancelling a visa, the primary considerations of the decision-maker include:
- the protection of the Australian community from criminal or other serious misconduct;
- the best interests of minor children in Australia;
- whether Australia has international non-refoulement (protection of refugees) obligations to the person.
Further considerations can include:
- the impact of visa refusal on any immediate family members in Australia, where those family members are citizens, permanent residents, or people who have the right to remain in the country indefinitely;
- the impact of a decision to grant a visa on members of the Australian community, including victims of the person’s criminal behaviour, family members of the victim or victims, and where that information is available and can be disclosed to the person being considered for visa refusal;
- the impact on Australian business interests if the person’s application is refused.
What happens to a person who is excluded from Australia?
Any person, who has their visa cancelled on the grounds of substantial criminal record, past and present criminal conduct, or past and present general conduct, will be permanently excluded from entering Australia.
Can an excluded person appeal the decision?
If the Minister personally makes the decision to refuse or cancel a visa, there is no right of appeal available for the applicant. However, if it is a delegate to the Minister who makes the decision to refuse or cancel the visa, the person has the right to ask for a review of the decision by the Administrative Appeals Tribunal (AAT).
Applicants, who wish to have the AAT review the decision, must make an application within nine days of being notified of the decision. If the application is made outside of Australia, the application for review must be lodged by a sponsor or nominator within 28 days of being notified of the decision.
The decision will be considered as confirmed if the AAT does not make its own decision within 84 days of the date on which the applicant was notified of the original decision.
Irrespective of whether or not an appeal has been made to the AAT, an applicant can seek a judicial review of the decision if they are of the belief that it was made unlawfully.