There has been a lot of media coverage lately regarding Australian immigration and reasons for the refusal/cancellation of an Australian visa, or in extreme cases revocation of Australian citizenship. Australia, like all other nations, is interested in migrants who are of good character. Now, this is where lines can be blurred because what is considered good character can be subjective.
Australia has a specified character criteria that is used to determine if a person will make an ideal resident or citizen. First things first; whether a person has spent time in prison is asked globally when completing a visa application. When it comes to Australia you will fail the ‘test’ if you have a substantial criminal record. The Department of Immigration & Border Protection considers a person to have a ‘substantial’ criminal record if:
- You are sentenced to life imprisonment or death.
- Sentenced to a term of imprisonment for 12 months or more.
- Sentenced to two or more terms of imprisonment (be it on one or more occasions), where the total of these terms are equal to two years or more.
- Acquitted of an offence on the grounds of either unsoundness of mind or insanity and, as a result, the person has been detained in a facility or institution.*
Australia is very strict when it comes to satisfying the character test and if you have ticked off even one of the above you will not be granted a visa.
The above points don’t really take into account the visa applicant’s personality. The old saying, ‘If you do the crime you do the time’, rings true with the character test. Within the Department of Immigration & Border Protection, the Delegate (who represents the Immigration Minister) holds the power to grant or deny a person’s visa. To this end, past and present behavior are one and the same in the eyes of Australian government. If you have had engaged in some form of illicit behavior either in the past or currently (or both if you are a criminal high achiever) then you may deemed by the Delegate as unsuitable for an Australian visa. There is also a clause that stipulates if you have had an affiliation with a criminal organisation, or an organisation which is suspected of criminal activity or an individual with a criminal history then your own character will be called into question.
Always the question asked in deciding whether or not someone is allowed into Australia is, ‘Is there a possibility that the community or other individuals might face a serious threat from the applicant?’ If the answer is yes then you may not pass the character test.
If you are already living in Australia with a visa and fail the character test, you will need to persuade the Immigration Minister that your visa should not be cancelled. The Minister will take into consideration a series of points:
- Protection of the Australian community from serious criminal or other harmful conduct
- Whether you were a minor when you began living in Australia
- The length of time you had been in Australia before engaging in criminal activity, and
- Relevant international obligations including the best interests of any children involved and Australia’s obligations not to return refugees to a place where their lives or freedoms could be threatened (called “non-refoulement”).
It is important to note that if you have a substantial criminal record, you automatically fail the character test and must argue why your visa should not be cancelled despite this.
Should your visa be cancelled under Section 501 of the Migration Act 1958 by a Delegate of the Minister you may apply for review of the cancellation at the AAT. The case will be reviewed and assessed to see if the original decision to cancel the visa was correct.
If the Minister personally cancels your visa, then you cannot have your case reviewed at the ATT. You will only have limited rights to appeal to the Federal Court of Australia.
It is essential that if you have received a Notice of Intention to cancel from the Department of Immigration & Border Protection or if you have had your visa cancelled due to character issues that you contact an Australian immigration specialist to discuss your options. Both the AAT and the Federal Court have strict time frames in which to lodge the review or appeal.
Although there has been public outcry regarding the cancellation of visas for long term residents, revocation of Australian citizenship and possible deportation of the convicted person; the immigration character test and all Australian state and territory laws are in place to keep Australia’s people and communities safe from organisations and individuals who engage in illicit behavior and criminal activities that threaten our safety and well being.
If you have any questions in regards to the character test and Australian immigration please contact us at email@example.com
*If you have been suffering from any mental illness’s this will not mean that you are automatically banned from Australia. The only illness that will not allow you too freely cross Australian borders is tuberculosis. For everything else, tests will be arranged and you will be assessed either by a doctor or a specialist for psychiatric assessment and determination of prognosis, treatment required, work history, ability to undertake activities of daily living, social history etc.