Visas and the importance of ‘good character’

To be granted entry to Australia whether temporarily or permanently, whether you are a main applicant or an additional applicant, you will need to pass the character test set out in section 501 of the Migration Act 1958.

This character requirement attaches itself to the type of visas which are applied through the Public Interest Criterion (PIC) 4001. The onus is on 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, or the Department of Immigration and Citizenship (DIAC).

Consequently, the DIAC will consider your past and any present criminal conduct along with your conduct in general, in determining whether you are of good character. This means you will be required to disclose information about your past conduct including criminal convictions or charges, and the refusal or cancellation of any previous visas.

According to recent news reports, following recent amendments made to the legislation late last year, the Minister has cancelled as many Visas over the last 3 months as were previously cancelled over the past three years!

What constitutes failure of the character test?

 The Applicant will fail 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 have been convicted of an offence of escaping from immigration detention
• 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 person represents a danger to the Australian community.
• Having regard to the person’s past and present general criminal conduct, the person is judged not to be of good character.

What is 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

You will also be judged to have a ‘substantial criminal record’ if you have been acquitted of an offence due to unsoundness of the mind, or insanity and as a result have been detained in a facility or institution.

What happens to a person who is excluded from Australia?

In plain terms it is severe. 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.

Why the increase in Visa Cancellations for Character Reasons?

The increase in visa cancellation numbers is a government response to national security concerns especially in the areas of organised crime and counter-terrorism.

Prime Minster Tony Abbott recently said the government aims to target “organisations and individuals blatantly spreading discord and division” and “include stronger prohibitions on vilifying, intimidating or inciting hatred” and made specific mention of the “hate preachers”.

Whilst recent visa cancellations are focused on organised crime, sex crimes and terrorism, it is possible that any person with criminal convictions outside of these offences can have their Australian visas revoked.

Recent security concerns have heightened the level of border protection, it is likely more cancellations will occur. Naturally, it is a good idea for all visa holders and applicants to stay out of trouble with the law in order to preserve your life and residence in Australia.

The importance of legal experience

If you need to complete a Visa Application or have received a notice requiring a response from the DIBP you should seek legal help.

We are experienced in assisting applicants with visa applications for Skilled Migration including Independent and State Sponsored visas, state sponsorship applications, Family Migration visas as well as employer-sponsored visas. We also assist applicants who have health or character concerns in a visa or citizenship application.

If you need more information, or if you need assistance or advice, please call us on 07 3281 6644 or email mail@powerlegal.com.au.